In November, 2012, Massachusetts voters passed a ballot initiative authorizing the use of medical marijuana. The Department of Public Health, charged with implementing the law, recently issued its final regulations on medical marijuana.
The law does not require that employers accommodate the on-site use of medical marijuana. 105 CMR 725.650. Therefore, it is clear that even registered medical marijuana users will not be able to use medical marijuana in their places of employment. However, there is no firm guidance as to whether employers will be able to make adverse hiring or termination decisions based on off-site marijuana use.
The regulations state that “nothing in [the regulations] shall be construed to limit the applicability of other law as it pertains to the rights of landlords, employers, law enforcement authorities, or regulatory agencies.” This language appears to protect the current right of employers to refuse to hire or to terminate candidates or employees who test positive for marijuana use. Moreover, other states that have approved the use of medical marijuana nevertheless permit employers to take adverse actions against employees who test positive for marijuana use. This includes Colorado, a state that now permits the recreational use of marijuana.
However, there is some risk that employers may be sanctioned for taking adverse actions against employees who use marijuana for medical purposes but are not impaired on the job and do not work in ‘safety-sensitive’ positions. While illegal drug use is not protected by Massachusetts discrimination law, employees who use prescribed medications to treat illnesses may be protected by those laws, in the event that the illness or condition constitutes a ‘handicap’ under the law. Conditions such as cancer, glaucoma, HIV, and Multiple Sclerosis have been considered handicaps under Massachusetts anti-discrimination law. Those conditions are also ‘debilitating medical conditions’ under the medical marijuana regulations. It is conceivable that employers who terminate or refuse to hire medical marijuana users who lawfully use marijuana as part of their treatment for those conditions may be found liable for discriminating against those employees based upon their handicap.
Federal law prohibits marijuana use and possession, so federal employment laws, including the Americans with Disabilities Act (ADA), are not impacted by the Massachusetts medical marijuana regulations. Marijuana remains an illegal drug for the purposes of Federal law, and employers do not violate Federal law by discharging employees who use medical marijuana. Furthermore, employers who have Federal contracts or receive Federal funds must comply with Federal laws regarding employee drug testing and workplace drug policies.
The Massachusetts medical marijuana law creates a significant area of ambiguity for employers. Much of this ambiguity will only be resolved through court decisions and subsequent regulations. For the time being, employers should be aware of the risks and seek sound legal advice on these issues.