New England Biz Law Update
Massachusetts recently became one of a number of states to legalize the use of marijuana for medical purposes. Regulations issued by the Department of Public Health went into effect May 24, enabling individuals to register to use medical marijuana.
Employers should consider the new law in administering their personnel policies with respect to such applicants and employees.
Massachusetts Medical Marijuana Act
In November 2012, Massachusetts voters approved a ballot question that would allow qualifying patients with certain medical conditions to obtain and use medical marijuana.
The Massachusetts Act for the Humanitarian Medical Use of Marijuana — which went into effect on Jan. 1 — eliminates state criminal and civil penalties for the medical use of marijuana by qualifying patients.
To qualify, a patient must have been diagnosed with a debilitating medical condition such as cancer, glaucoma, HIV positive status or AIDS, Parkinson’s disease, ALS or multiple sclerosis. The patient must obtain written certification from a physician with whom the patient has a bona fide doctor-patient relationship, indicating that the patient has a specific debilitating medical condition and likely would benefit from the use of marijuana.
The DPH recently issued regulations for the registration of certifying physicians as well as the registration of qualifying patients and marijuana dispensaries. An ID card issued by the DPH verifies that the individual has received written certification from a physician and is exempt from criminal and civil penalties relating to the use of marijuana.
A registered patient may obtain a 60-day supply of marijuana from a treatment center authorized by the DPH.
The fact that there will be individuals either applying for jobs or in the workplace carrying registration cards raises a number of questions for Massachusetts employers.
Pre-employment drug testing for applicants
Many employers utilize pre-employment drug testing under which an applicant is provided a conditional offer of employment, contingent on passage of a drug screening test.
What if an applicant presents the employer with a medical marijuana registration card? Is the employer permitted to include marijuana in the drug test?
The act should not prevent employers from continuing to enforce pre-employment drug screening policies that screen for the use of drugs, including marijuana. The law does not directly address the issue, but judicial precedent from other jurisdictions with medical marijuana laws is instructive.
For example, the Washington Supreme Court analyzed the question in Roe v. Tele Tech Customer Care Management.
In Roe, the company made a job offer to an applicant contingent on the successful completion of reference and background checks and a drug screening test. Pending the results of the pre-employment tests, the plaintiff started attending company-paid training.
Upon receiving a copy of the company’s drug policy, which provided that all new hires were required to have a negative drug test result, the plaintiff informed the company of her use of medical marijuana and offered to provide the company with a copy of her authorization to use marijuana under the state’s medical marijuana law. The plaintiff tested positive for marijuana and was terminated from training and denied further employment.
The plaintiff sued in state court claiming wrongful termination in violation of the medical marijuana law and the public policy allowing medical marijuana use.
The court held that while the act provides an affirmative defense for medical marijuana users against criminal or civil prosecution under state drug laws, it does not contain a private cause of action for employees or applicants against their employer.
Similarly, there is nothing in the Massachusetts act providing a private cause of action for applicants or employees. Accordingly, the result under Massachusetts law should be to uphold the employer’s right to insist on a drug screening test that includes marijuana.
Drug testing for current employees
Similar to the outcome with respect to pre-employment drug testing, courts that have faced the issue of whether an employer may terminate a current employee who tests positive for marijuana have upheld the employer’s right to do so.
In the absence of a private right of action expressly set forth in the relevant state medical marijuana law, courts have not recognized a claim for wrongful termination.
In addition, it is important to note that there is a conflict between federal drug enforcement laws and state medical marijuana laws. Most prominently, the Controlled Substances Act is a federal law that makes it unlawful to manufacture, distribute, dispense or possess any controlled substance except in a manner authorized by the CSA.
The CSA categorizes all controlled substances into five schedules. The drugs are grouped together based on their accepted medical uses, the potential for abuse, and their psychological and physical effects on the body. Each schedule is associated with a distinct set of controls regarding the manufacture, distribution and use of the substances listed therein.
The CSA categorizes marijuana as a so-called Schedule I Drug, which is defined to include substances that have “a high potential for abuse.”
Relying, in part, on federal preemption, state supreme courts in California, Oregon and Montana have rejected claims from employees seeking protection from adverse employment actions based on the use or possession of marijuana under the applicable state medical marijuana laws.
Many employers must also comply with other federal requirements, such as transportation companies subject to U.S. Department of Transportation regulations, which provide for comprehensive drug and alcohol testing guidelines for employees in safety sensitive positions. According to DOT guidelines, an employer is required to conduct random drug testing as well as incident testing based on reasonable suspicion.
Federal contractors and recipients of federal funding are generally required to comply with the Drug-Free Workplace Act of 1988, which mandates that employers maintain a “drug-free workplace.” An employer that tolerates the use of medical marijuana in the workplace under state law would be in violation of its federal law obligations under the Drug-Free Workplace Act.
Based on existing federal law and judicial authority in other state jurisdictions, it is safe to assume that Massachusetts employers can continue to enforce their drug testing policies even if an employee possesses a medical marijuana registration card.
Accommodation obligations
The Americans with Disabilities Act and state disability laws require that employers provide reasonable accommodations for qualified individuals with a disability. So, for example, if a diabetic employee requires an accommodation for the administration of insulin, the employer must provide that accommodation if it is reasonable and does not impose an undue hardship under the law.
The question then arises about an employer’s accommodation obligations concerning an employee with a debilitating medical condition for which medical marijuana treatment has been certified by a physician. Does the employer have an obligation to accommodate the use of medical marijuana in the workplace or during the workday?
The short answer can be found in the text of the Massachusetts Medical Marijuana Act.
The act states, in part, that it does “not require any accommodation of the medical use of marijuana in any workplace, school bus or grounds, youth center, or correctional facility.” In addition, the ADA does not require an accommodation for the “illegal use of drugs.” The ADA defines “illegal drug use” by reference to federal rather than state law, and, as discussed above, federal law characterizes marijuana as an illegal substance.
In conclusion, nothing in the Massachusetts act or the DPH regulations makes it illegal for an employer to engage in drug testing. In addition, an accommodation to use medical marijuana in the workplace is not required.
However, in light of the passage of the Medical Marijuana Act, employers are well advised to review their personnel policies and procedures to ensure that proper safeguards are in place and that applicants and employees have adequate notice regarding testing for the use of medical marijuana.
Terence P. McCourt is managing shareholder at Greenberg Traurig in Boston, where he chairs the labor and employment group. He can be contacted at [email protected].
