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Employer’s Duty to Accommodate Medical Marijuana Remains Hazy

Valerie Samuels June 18, 2014

For more than a year, qualified patients in Massachusetts have been able to obtain, possess, and use medical marijuana without fear of criminal prosecution or civil penalties.  Specifically, The Act for the Humanitarian Medical Use of Marijuana (“Act”) states that “any person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions.” 2012 Mass. Acts c. 369, § 4.  Massachusetts and federal anti-discrimination laws impose upon employers a duty to reasonably accommodate qualified disabled persons.  In light of these obligations, employers are concerned about accommodating the disabilities of qualified employees by allowing them to use medical marijuana.

The Act states that employers are not required to accommodate the “on-site medical use of marijuana in any place of employment.”  In May 2013, the Massachusetts Department of Public Health (“DPH”) issued final regulations (“Regulations”) implementing the Act. On the accommodation issue, the Regulations merely parrot the Act and, unfortunately, fail to define the meaning of the phrase “on-site medical use.”  A broad interpretation of the phrase might cover any work activity performed under the influence of marijuana, while a narrow interpretation might cover only the actual use of marijuana at the work site.  Other possible interpretations fall somewhere between these two extremes.  DPH has left employers with considerable uncertainty over their legal obligation to accommodate medical marijuana use.

By way of example, the regulations do not explain how an employer should respond to an employee’s request to smoke marijuana off-site before work or while on a break.  Nor do they offer insight into whether an employee who works at home is entitled to snack on pot-brownies while conversing with a client or vendor.  These questions are critical to employers, which often have policies proscribing drug use during working time. Drug-testing employees and applicants also is now more complicated.  Terminating or failing to hire an employee based on the presence of THC (the active substance in Marijuana) in his or her bloodstream may violate the employer’s duty to accommodate where the adverse action is not based on the actual “on-site” use of marijuana and the person had a valid medical basis for using marijuana. Employers should be concerned over these ambiguities in light of the state law mandate against denying rights and privileges due to medical marijuana use.

The employer’s predicament is further complicated by the fact that federal law classifies medical marijuana as an illegal substance.  Courts interpreting the federal Americans with Disabilities Act have generally held that employers are not required to permit the use of illegal drugs, including medical marijuana, as a reasonable accommodation to a disabled employee. Thus, employers could be subject to conflicting legal standards under federal and state law.  Even more troubling is the potential for employer liability for the acts of employees who are permitted to work under the influence of an illegal drug.

The law in this area is rapidly evolving and, as more and more states enact legislation legalizing medical marijuana, pressure is mounting on the federal government to conform its position to the growing public consensus.  Employers must proceed with caution and an up-to-date awareness of their legal obligations when addressing an employee’s request for accommodation of their medical marijuana use.  Employers should revisit their disability accommodation policies and train human resources personnel with respect to these issues.  Specifically, employers may safely take the position that they need not accommodate the actual ingestion of marijuana on the employers’ premises.  Also, employers do not need to accommodate employees who are in safety sensitive positions where they may injure themselves or others.  Beyond that, however, employers should seek the advice of employment counsel before making decisions related to the use of medical marijuana.

If you have any questions or need additional information regarding this, please contact Valerie C. Samuels at vsamuels@pbl.com or any other attorney in our Employment Group.

The author wishes to thank Attorney Justin Kesselman for his assistance with this client alert.

Client Advisory is provided for information purposes onlyand does not constitute legal adviceAccording toMassSJC Rule 3:07, this material may be considered advertising. ©2014 Posternak Blankstein & Lund LLPAllrights reserved.

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