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Massachusetts Medical Marijuana Act Premier

Massachusetts became the latest state to legalize the use of marijuana for medical purposes. Regulations issued by the Massachusetts Department of Public Health (DPH) were effective on May 24, 2013, enabling individuals to register to use medical marijuana. Massachusetts employers should consider this new law in administering their personnel policies with respect to applicants and employees registered to use medical marijuana.

In light of the new regulations, Massachusetts employers need to be aware of how the medical marijuana law impacts them in three key areas: pre-employment drug testing for applicants; enforcement of drug-testing policies for current employees; and an employer’s obligation to accommodate the use of medical marijuana in light of disability laws.

Mass. Medical Marijuana Act

In November of 2012, Massachusetts voters approved a ballot question which allows qualifying patients with certain medical conditions to obtain and use medical marijuana. The medical marijuana law, titled the Massachusetts Act for the Humanitarian Medical Use of Marijuana became effective on January 1, 2013.

The law eliminates state criminal and civil penalties for the medical use of marijuana by qualifying patients who have been diagnosed with a debilitating medical condition. 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.

To use medical marijuana, the patient must obtain a written certification, from a physician with whom the patient has a bona fide patient-physician relationship, indicating that the patient has a specific debilitating medical condition and would likely obtain a net benefit from medical use of marijuana.

The DPH has issued regulations setting forth procedures with respect to the registration of certifying physicians, as well as the registration of qualifying patients and marijuana dispensaries. Under the regulations, a process is established for individuals to obtain a registration card, which is an identification card issued by the DPH used to verify that the individual has received written certification from a physician and is exempt from state criminal and civil penalties relating to the use of marijuana.

Pre-Employment Drug Testing for Applicants

The Massachusetts Medical Marijuana Act should not prevent employers from continuing to enforce pre-employment drug-screening policies that screen for the use of drugs, including marijuana, although policies should be reviewed to ensure proper notice to applicants. The act does not directly address pre-employment drug testing, but judicial precedent from other jurisdictions is instructive.

For example, in Roe v. TeleTech Customer Care Management, the Washington Supreme Court analyzed this question under Washington state’s medical marijuana law. In Roe, the company made a job offer to an applicant contingent on a drug test. The plaintiff tested positive for marijuana and was terminated from training and denied further employment.

The employee sued claiming wrongful termination and violation of the public policy allowing medical marijuana use. The court held that while the state's medical marijuana act provides an affirmative defense to medical marijuana users against criminal or civil prosecution under state law, it does not contain a private cause of action for employees or applicants against their employer.

Similarly, the Massachusetts Medical Marijuana Act provides no such private cause of action. Accordingly, the result under Massachusetts law should be to uphold the employer’s right to insist upon 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.

A federal law, the Controlled Substances Act (CSA) makes it unlawful to manufacture, distribute, dispense or possess any controlled substance except in a manner authorized by the CSA. The CSA categorizes marijuana as 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 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 the Department of Transportation 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 Massachusetts state disability law require that employers provide reasonable accommodations for qualified individuals with a disability.

Do Massachusetts employers now have an obligation to accommodate the use of medical marijuana in the workplace or during the workday? The short answer to this question 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.”

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. As discussed above, federal law characterizes marijuana as an illegal substance.
Make Employees Aware in Handbook that No Expectation of Privacy
Nothing in the Massachusetts Medical Marijuana Act or the Department of Public Health 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 notice regarding testing for the use of medical marijuana.

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