Massachusetts recently became one of a number of states to legalize the use of marijuana for medical purposes. Regulations issued by the Massachusetts Department of Public Health are 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.

Massachusetts 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 (the “Medical Marijuana Act”) 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.

The Massachusetts Department of Public Health (“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 preemployment drug screening policies that screen for the use of drugs, including marijuana, although policies should be reviewed to ensure proper notice to applicants. The Massachusetts Act does not directly address pre-employment drug testing, but judicial precedent from other jurisdictions is instructive. For example, in Roe v. Tele Tech 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 Washington State Supreme Court held that while the Washington 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.

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. A federal law, the Controlled Substances Act (the “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.

Accommodation Obligations

The Americans with Disabilities Act (the “ADA”) 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.

Conclusion

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.