MUST MASSACHUSETTS EMPLOYERS NOW MAKE EXCEPTIONS TO THEIR POLICIES ON ILLEGAL DRUG USE?
(This guest post was written by the labor attorneys at Mirick O’Connell)
Massachusetts recently became one of a number of states that have laws permitting the use of marijuana for medical purposes. The Law for the Humanitarian Medical Use of Marijuana (the “Medical Marijuana Law”) that passed as a ballot initiative in Massachusetts on November 6, 2012, exempts individuals with qualifying medical conditions from penalties imposed under state law for the use of marijuana.
Are Employers Required to Accommodate Applicants and Employees Who Use Medical Marijuana?
Most employers have policies or practices which prohibit the possession, use and distribution of alcohol and illegal drugs in the workplace. In light of the Medical Marijuana Law, must Massachusetts employers now permit their employees to possess and use medical marijuana at work? While the laws of some other states require employers to accommodate the use of medical marijuana, the Massachusetts law explicitly provides that it does not require “any accommodation in any place of employment.” Thus, the Medical Marijuana Law does not require employers to allow their employees to possess or use medical marijuana in the workplace, even if the drug is being used to treat a disability.
It is also important to note that federal law, under which marijuana is classified as a Schedule I controlled substance, prohibits the possession, use and distribution of marijuana without regard to state-authorized medical marijuana. Moreover, there are federal laws which implicitly or expressly compel employers to prohibit the use of marijuana at the workplace. For example, under the Occupational Safety and Health Act (OSHA), employers are obligated to provide their workers with a safe workplace. If employees are permitted to use or be under the influence of marijuana at work, workplace safety can certainly be jeopardized. In addition, under the Drug Free Workplace Act of 1988, employers must maintain a “drug-free workplace” as a condition to becoming a federal contractor or receiving funding from the federal government. Thus, an employer which desires to accommodate an employee’s use of medical marijuana should consider whether that would risk liability under federal law or jeopardize the employer’s ability to be a federal contractor or funding recipient. Employers should also consider the risk of incurring claims for negligence, including negligent hiring, if employees under the influence of marijuana cause harm to other employees in the workplace.
Can Employers “Discriminate” Against Applicants and Employees Who Use Medical Marijuana?
The short answer is: most likely. The Supreme Courts in California, Washington, and Oregon have each held that their medical marijuana laws do not prohibit employers from discharging an employee or refusing to hire an applicant who tests positive for marijuana, even if the individual’s use of the drug is for medical purposes. In May 2012, the Ninth Circuit Court of Appeals held that the ADA does not protect against discrimination on the basis of state-authorized use of medical marijuana, even if such use is supervised by a doctor in accordance with state law. While Massachusetts courts have not yet considered this issue, they will probably follow other jurisdictions in this area. Employers may want to be proactive by revising their current drug and alcohol policies to include a statement providing that marijuana use and possession, even for medical purposes, is prohibited and may subject employees to disciplinary action.
However, employees will likely find other ways to “skin the cat” when they have been disciplined or discharged for using medical marijuana. For example, while discrimination laws do not protect employees from their current use of illegal drugs, an employee who has a history of addiction to or treatment for illegal drugs may be deemed to be “a qualified individual with a disability” under the ADA and Massachusetts law. Furthermore, employees may also claim that they are being discriminated against on the basis of the disability for which they are using marijuana. For these reasons, employers would be wise to consult their employment law counsel before taking adverse action against an applicant or employee for using medical marijuana.