On November 16, 2012, Massachusetts became the 18th state to approve the use of marijuana for medical purposes. Chapter 369 of the Acts of 2012, which became law on January 1, 2013, allows qualifying patients with certain medical conditions and debilitating symptoms to use marijuana for medical purposes. The Massachusetts Department of Public Health adopted regulations to implement the law on May 8, 2013.
At least one employment discrimination complaint has been filed with the Massachusetts Commission Against Discrimination (MCAD) related to the use of marijuana for medical purposes since the passage of the law. In May 2015, a 34-year old woman suffering from Crohn’s disease filed a complaint with MCAD over her termination from a marketing position when a drug test revealed marijuana use. In the complaint, she alleges she disclosed that she takes marijuana for medical use during her employment interview. The MCAD has not yet issued a decision in the case.
The rapidly changing medical and legal landscape with respect to marijuana use presents Massachusetts employers with some complex challenges.
What Do Employers Need to Know about the Massachusetts Medical Marijuana Law?
To qualify to use marijuana for medical purposes, a person must be:
- A Massachusetts resident, at least 18 years old, who is diagnosed by a Massachusetts licensed certifying physician as having a debilitating medical condition, or
- A Massachusetts resident, under 18 years old, who is diagnosed by two Massachusetts licensed certifying physicians, at least one of whom is a board-certified pediatrician or a board-certified pediatric subspecialist, as having a debilitating medical condition that is also a life-limiting illness.
Under the Department of Public Health’s regulations, debilitating medical conditions include: cancer, glaucoma, HIV positive status, AIDS, Hepatitis C, Amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, and Multiple sclerosis (MS).
Patients qualified to use marijuana for medical purposes must obtain a registration card from the Massachusetts Department of Public Health. The registration card is valid for one year from the date of issue.
Both the statute and the Massachusetts regulations contain a similar limitation with respect to the employment setting: that the law does not limit an employer’s rights under other laws and that an employer need not accommodate any on-site use of marijuana.
Does the New Law Permit Workplace Use or Being Under the Influence at Work?
It seems quite clear from the statute and regulations that the intent was to leave Massachusetts employers with the flexibility to prohibit workplace use of marijuana or being under the influence of marijuana while at work. There is nothing in the Massachusetts medical marijuana law that prevents employers from prohibiting employees from working while under the influence of marijuana, and the regulations seem to specifically create a zone of employer discretion in this regard.
Moreover, although no Massachusetts court has yet decided the issue, courts in other states with legalized medical marijuana have consistently found that employers may continue to enforce drug-testing policies that screen for the use of marijuana. These courts have also upheld the employer’s right to terminate a current employee who tests positive for use of medical marijuana, whether or not the employee was working while under the influence.
Also, there are certain settings where an employer is required to prohibit the possession or use of marijuana in the workplace. For example, under the Drug Free Workplace Act of 1988, some Federal contractors and all Federal grantees must agree that they will provide drug-free workplaces as a precondition of receiving a contract or grant from a Federal agency. The prohibited drugs are those that are controlled substances under the Federal Controlled Substances Act, which includes marijuana. The use of medical marijuana may also be illegal under other Massachusetts laws, such as Mass. General Laws, Chapter 90, § 24, which prohibits operating a motor vehicle while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances.
In short, the new law in and of itself does not require Massachusetts employers to tolerate use, possession, or being under the influence, of marijuana in the workplace. But that is not necessarily the end of the inquiry because an employer must consider how the new law intersects with existing disability accommodation obligations.
Does an Employer Need to Tolerate Use of Medical Marijuana as a Reasonable Accommodation?
Under the Federal Americans with Disabilities Act (ADA), it appears reasonably clear that an employer does not need to grant an accommodation for the use of drugs that are illegal under Federal law. The ADA specifically provides that a person currently using illegal drugs is not a qualified individual with a disability and thus is not protected by the ADA.
A Massachusetts employer’s rights, however, could be limited by the Massachusetts anti-discrimination statute (M.G.L. c. 151B, § 4(16)), which -like the ADA- requires an employer to provide a reasonable accommodation to a qualified individual with a disability. The Massachusetts anti-discrimination statute does not contain the same exclusion as the Federal statute for those currently using illegal drugs.
The question of whether a Massachusetts employer must consider an accommodation allowing an employee’s off-site use (the new law expressly allows an employer to prohibit on-site use) of medically prescribed marijuana, at least where the employee is not under the influence at work, is an unsettled issue. Among other questions, the courts will have to decide whether the limiting language in the Massachusetts medical marijuana law (preserving an employer’s rights and specifically noting that on-site use does not need to be accommodated) is intended to leave the employer with the flexibility to deny an accommodation that involves the use of medical marijuana. There are also Constitutional questions about the supremacy of the Federal Controlled Substances Act.
Courts in other states have tended to leave employers with the right to deny such accommodations. While that seems the likely outcome in Massachusetts as well, it is simply too early to predict how this looming legal battle with play out in the Massachusetts courts.
Of course, it is not permissible for an employer to make an adverse employment decision based on an employee’s or candidate’s underlying medical condition, which he or she happens to be treating with marijuana. Indeed, the Massachusetts’ anti-discrimination statute prohibits an employer from asking a candidate about any treatments used for his or her medical conditions or diseases. This issue has arisen in a number of cases around the country where the employee has claimed that the motivating factor in the employer’s decision was his or her disability and not the use of medical marijuana. The watchword for employers is, as in most employment law situations, consistency. If employers treat the use of marijuana consistently, they are unlikely to face a viable claim of pretextual decision-making.
 The regulations are codified at 105 CMR 725.000 et seq.
If you have any questions about the information presented here, or would like to learn more about how Prince Lobel can address any of your employment law concerns, please contact Daniel S. Tarlow, the author of this Alert and Chair of Prince Lobel’s Employment Law Practice Group at 617 456 8013 or dtarlow@PrinceLobel.com, or Rochelle Zapol, a partner in Prince Lobel’s Health Care Practice Group at 617 456 8036 or rzapol@PrinceLobel.com.