Lawyers Journal

In November 2012, Ballot Question 3, "An Initiative Petition for a Law for Humanitarian Medical Use of Marijuana," passed with a 63.3 percent vote, making Massachusetts the 18th state in addition to the District of Columbia to approve the use of marijuana for medical purposes. This measure, which became law on Jan. 1, 2013 (Chapter 369 of the Acts of 2012) (the act), allows qualifying patients with certain defined medical conditions or debilitating symptoms to obtain and use marijuana for medicinal use, and it eliminates state criminal and civil penalties for such use by qualifying patients.

The act also required the Massachusetts Department of Public Health (DPH) to issue regulations by May 2013 to guide the use and availability of medical marijuana for qualifying patients. DPH issued its final regulations (105 CMR 725.000 et seq.), which the Public Health Council approved on May 8, 2013. The regulations were published and effective on May 24, 2013. In the ensuing weeks, DPH will be issuing guidance pertinent for each category of registrant that will clarify application processes and timelines, as well as requirements in the period preceding full implementation of the medical marijuana program.

In order to qualify under the act, a patient must be diagnosed with a "debilitating medical condition" as defined in the statute and must obtain a written certification from a physician with whom the patient has a bona fide physician-patient relationship. This certification must state the patient's particular debilitating medical condition and symptoms, as well as that the potential benefits of the medical use of marijuana outweighs any associated health risks for the patient. The act allows a patient to possess up to a 60-day supply of marijuana for his or her personal use, with DPH defining said quantity and the process through its regulations.

DPH's regulations include rules for the use of medical marijuana, including registration cards for qualifying patients, the definition of a 60-day supply allowed under the law, and procedures for the operation of up to 35 nonprofit dispensaries for medical marijuana. However, with respect to the workplace, the regulations do not provide any guidance beyond what is already contained in the law itself. While certain employment-related questions will likely be tested in the courts in future cases, the experiences of how courts in other states with similar laws have addressed related workplace issues provide a helpful lens into how Massachusetts courts may determine the extent of employer obligations under the act. This article addresses a number of the issues relating to the act's likely impact on the workplace.

WHAT DO THE ACT AND REGULATIONS STATE RELATIVE TO THE WORKPLACE?

The act states that its purpose and intent is that there should be no punishment under state law for qualifying patients, physicians and health care professionals, personal caregivers for patients, or medical marijuana treatment center agents for the medical use of marijuana, as defined in the law. Act, § 1. Of primary importance for the impact of this law on the workplace, the act and the regulations provide the following three provisions:

Nothing in this law or regulation requires any accommodation of any on-site medical use of marijuana in any place of employment, school bus or on school grounds, in any youth center, in any correctional facility, or of smoking medical marijuana in any public place. Act, § 7(D); 105 CMR 725.650(B)(4).

Nothing in this law or regulation requires any health insurance provider ... to reimburse any person for the expenses of the medical use of marijuana. Act, § 7(B); 105 CMR 725.650(B)(2).

Nothing in 105 CMR 725.000 shall be construed to limit the applicability of other law as it pertains to the rights of ... employers … 105 CMR 725.650(A).

Further, several of the act's and regulations' definitions relevant to the workplace include:

"Debilitating medical condition" means: cancer, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn's disease, Parkinson's disease, multiple sclerosis (MS), when such diseases are debilitating, and other debilitating conditions as determined in writing by a qualifying patient's certifying physician.

"Qualifying patient" means a Massachusetts resident 18 years of age or older who has been diagnosed by a Massachusetts licensed certifying physician as having a debilitating medical condition.¹

"Registration card" means a personal identification card issued by DPH to a qualifying patient, personal caregiver, or dispensary agent. The registration card verifies that a physician has provided a written certification to the qualifying patient and the patient has been registered with DPH; that the patient has designated the individual as a personal caregiver; that a patient has been granted a hardship cultivation registration; or that a dispensary agent has been registered with DPH and is authorized to work at a registered marijuana dispensary. The registration card shall identify for DPH and law enforcement those individuals who are exempt from Massachusetts criminal and civil penalties for the medical use of marijuana in compliance with the law and regulations.

"Written certification" means a form submitted to DPH by a Massachusetts licensed certifying physician, stating that in the physician's professional opinion, the potential benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying patient. Such certification shall be made only in the course of a bona fide physician-patient relationship and shall specify the qualifying patient's debilitating medical condition(s) and pertinent symptoms.

Beyond these provisions, the act and the regulations do not explicitly address the act's impact on employer obligations and employee rights. Let us turn to several primary questions for employers and employees, and how other states have addressed these issues.

CAN EMPLOYERS DENY EMPLOYMENT TO APPLICANTS AND EMPLOYEES WHO USE MEDICAL MARIJUANA?

Generally speaking, most states that have enacted similar laws have treated issues relating to employers the same, as have courts that have decided employer-related questions. The general consensus in the courts and the legal commentaries is that these laws do not require employers to modify their employment practices, drug-free workplace policies, drug testing policies, or accommodation policies. The courts have consistently held for employers in these states. In fact, the state supreme courts in California, Montana, Oregon and Washington have all upheld employers' decisions to terminate medical marijuana users.² These courts have found that because federal law preempts state medical marijuana laws, medical marijuana users authorized under state law are not protected from employer drug testing policies. Further, the courts have held that medical marijuana laws do not create a public policy protecting medical marijuana users.

For example, in 2011, in  Roe v. Teletech Customer Care Management, 257 P.3d 586 (Wash. 2011), the Washington Supreme Court held that Washington's medical marijuana law did not protect medical marijuana users from adverse hiring or disciplinary decisions under an employer's drug testing policy. In that case, the employer rescinded the plaintiff's job offer after she failed a drug test for marijuana, and she sued for wrongful termination based on violation of public policy because she was an authorized medical marijuana user. The Court found that Washington's medical marijuana law did not prohibit an employer from discharging an employee for medical marijuana use, even when the marijuana use was offsite and on the employee's own time. In September 2012, in Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 6th Cir. 2012), the U.S. Court of Appeals for the Sixth Circuit reached the same conclusion in a case under Michigan's medical marijuana law, agreeing with the U.S. District Court for the District of Michigan's finding that the law did not impose restrictions on private employers.

Massachusetts courts obviously have not yet had the opportunity to consider these questions, and a Massachusetts court could conceivably decide that a termination for such authorized use outside of the workplace and not on work time, nor causing impairment at work, amounts to a wrongful termination based on a violation of a public policy. While there are strong arguments and persuasive authority upon which employers can rely in disputing the viability of such a claim, nothing is certain.

In sum, based on current case law in other states at this time, employers can continue to include marijuana in their drug testing. While Massachusetts employers will likely be able to decline to hire an applicant or discharge or discipline an employee for a positive test for marijuana use, even if for authorized medical reasons outside of the workplace and not on work time, nothing is guaranteed at this time.

MUST EMPLOYERS ACCOMMODATE APPLICANTS AND EMPLOYEES WHO USE MEDICAL MARIJUANA?

As discussed above, unlike some of the other states' laws, the new Massachusetts law explicitly provides that it does not require any accommodation in any place of employment. Thus, employers are not required to allow their employees to possess or use medical marijuana in the workplace, even if the drug is being used to treat a disability.

Of particular note, courts have unanimously held that the Americans with Disabilities Act (ADA) does not protect medical marijuana users or provide them a right to accommodation for medical marijuana use because marijuana is still an illegal controlled substance under federal law, regardless of any changes in state laws. The ADA does not protect employees currently using illegal drugs, and because marijuana remains an illegal drug under federal law, these various state laws will not make its use "lawful" under federal law. Accordingly, the ADA excludes marijuana use from its protection.

EMPLOYERS' PRE-EXISTING DOT OBLIGATIONS

Employers' obligations under federal law are unaffected by the new Massachusetts law, including Department of Transportation (DOT) drug and alcohol testing obligations for certain drivers. After several states passed medical marijuana laws, DOT issued guidance that such laws were inapplicable to DOT drug and alcohol testing regulations, stating that "it remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation's regulations to use marijuana." As federal law, DOT regulations will preempt any conflicting state law, and employers subject to DOT regulations should continue to comply with these obligations.

WHAT, IF ANYTHING, SHOULD EMPLOYERS DO NOW?

Based on the above, below are some general guidelines and issues for employers to consider, keeping in mind that future court decisions and possible legislative revisions to the law may alter the landscape:

• The Massachusetts law does not permit an employee to use marijuana in the workplace or to be impaired at work.
• Employers need not accommodate a medical marijuana user in any way, even if he or she possesses a registration card.
• Employers can continue to include marijuana in their drug testing. Employers will likely be permitted to decline to hire an applicant or discharge or discipline an employee for a positive test for marijuana use, even if for authorized medical reasons outside of the workplace and not on work time, especially for safety-sensitive positions. As discussed above, DOT regulations will continue to dictate an employer's obligations as to employees subject to these regulations. However, in other circumstances, because Massachusetts courts have not yet had the opportunity to consider these questions, there is some risk that a court would find such a discharge to amount to a wrongful termination for violation of a public policy.
• Employers should consider reviewing and revising their written drug testing and drug-free workplace policies to make clear that marijuana use and possession, "even for medical purposes," is prohibited and may subject employees to disciplinary action.
• Employers may also want to confirm that their job application and related paperwork contain clear information on their drug testing policy and drug-free workplace policy, including addressing the use of marijuana for authorized medical purposes, and that these policies are clearly communicated to applicants and employees. Employers may want to consider having employees sign an acknowledgment, confirming their understanding of such policies as well.
• To the extent an employer considers being more lax than required and making exceptions to its drug testing policy or zero tolerance drug-free workplace policy, federal contractors should be careful that in doing so, they may be compromising their compliance with their obligations under the federal Drug-Free Workplace Act. This federal law has not changed and does not make exceptions for such state laws.

While we await further guidance from DPH on the application processes and timelines and full implementation of the medical marijuana program, the act's impact on the workplace likely will not differ significantly, if at all, from the impact of similar laws in other states. Nevertheless, employers should be prepared for challenges and expect an increased number of employees who claim that the new law protects them from adverse consequences as a result of a failed drug test. Employers and human resources professionals should consult with their counsel and review their drug testing and drug-free workplace policies for possible revisions incorporating this new law.

¹A "qualifying patient" also includes a Massachusetts resident under 18 years of age who has been diagnosed by two Massachusetts licensed certifying physicians, at least one of whom is a board-certified pediatrician or board-certified pediatric subspecialist, as having a debilitating medical condition that is also a life-limiting illness.

²See, e.g., Roe v. Teletech Customer Care Management, 257 P.3d 586 (Wash. 2011); Emerald Steel Fabricators Inc. v. Bureau of Labor and Indus., 230 P.3d 518 (Or. 2010); Johnson v. Columbia Falls Aluminum Co. LLC, 213 P.3d 789 (Mont. 2009); Ross v. RagingWire Telecommunications Inc., 174 P.3d 200 (Cal. 2008).