The Massachusetts Medical Marijuana Act (MMA), which became effective January 1, 2013, permits qualifying patients with defined medical conditions to obtain and use marijuana for medicinal purposes. The MMA further eliminates civil and criminal penalties for marijuana use by qualifying patients. The Department of Public Health published regulations (effective May 24, 2013), to guide the use and accessibility of medical marijuana for qualifying users; however, only 105 CMR 725.650(A) & (B)(4) address the Act’s impact on employer obligations and employee rights.
Several state courts have upheld an employer’s right to continue drug testing and to take adverse employment action against applicants or employees who test positive for marijuana, despite their state’s medical marijuana law. While Massachusetts courts have not yet interpreted the state’s new law, decisions in other state courts may shed light on how Massachusetts courts will decide certain employment-related questions.
Must Employers Accommodate Their Employees Who Use Medical Marijuana?
No. Employers are not required to allow employees to possess or use marijuana, even if it is used to treat a disability, as addressed in the regulations. Further, the Americans with Disabilities Act does not protect medical marijuana users, or provide them with a right to an accommodation, because marijuana is still considered illegal under federal law.
Can Employers Deny Employment to Applicants, or Discharge, or Discipline Employees Who Use Medical Marijuana?
Based on federal law and other state’s case law, employers may continue to include marijuana in their drug testing, and deny applicants, or discipline, or discharge employees who test positive for marijuana.
How Do Employers Reconcile The New State Law With Federal Law Obligations?
Federal law preempts a state’s medical marijuana law. Employers subject to federal laws must continue to comply with federal obligations. For instance, police departments must comply with the federal law prohibiting possession of a firearm or ammunition by an individual who uses marijuana, regardless of whether it is medicinal.
Employers should revise existing policies to prohibit the use of marijuana, including for medicinal purposes. Employers should also place employees on notice that testing positive for marijuana may subject employees to disciplinary action.
