On Friday, May 22, 2015, the Massachusetts Commission Against Discrimination (“MCAD”) received what is believed to be the first complaint in the Commonwealth addressing the impact of medical marijuana use on a certified user’s employment. The case arises out of a Massachusetts woman’s use of medical marijuana for the treatment of Crohn’s disease and pits the legal use of medical marijuana against an employer’s right to impose standards in the workplace, including those related to the consequences of failing drug tests. In the case recently filed with the MCAD, the woman disclosed her marijuana use prior to submitting to a prospective employer’s drug test and before commencing her employment. Despite making this disclosure and meeting the law’s requirements, she was discharged after testing positive for the substance.
The Massachusetts medical marijuana statute provides, in pertinent part, that “[t]he citizens of Massachusetts intend that there should be no punishment under state law for qualifying patients…for the medical use of marijuana.” In essence, this law provides immunity from state criminal and civil penalties for the use of medical marijuana provided that the user is properly certified as a “qualified” patient and conforms to the requirements of the law. The law is limited, however; “[n]othing [in its terms] requires any accommodation of any on-site medical use of marijuana in any place of employment.” It is entirely silent on the issue of accommodation for off-site use. However, it also provides that “[n]othing [in its terms] requires the violation of federal law or purports to give immunity under federal law.” Marijuana continues to be classified under federal law as a Schedule I controlled substance, which identifies it as having “no currently accepted medical use in treatment in the United States” and prohibits anyone from knowingly or intentionally possessing it without incurring criminal and civil penalties.
Employees certified to use medical marijuana in the Commonwealth therefore face a difficult and contradictory predicament. Although they cannot be punished under state law for certified use of medical marijuana, that use can still expose them to penalties under federal law, which does not recognize medical use of the substance. Furthermore, Massachusetts has not yet decided whether an employee’s off-site use of medical marijuana, outside the hours of employment and away from the employer’s premises, protects the employee against adverse job action or otherwise entitles the employee to protection against discrimination and accommodation on account of a disability.
Other states that have grappled with this issue have done so with conflicting results. At least three states (Arizona, Delaware and Minnesota) statutorily prohibit an employer from discriminating against a person in hiring, terminating, imposing any term or condition of employment, or otherwise penalizing a person based on his or her status as a certified medical marijuana user or on the occurrence of a positive drug test, unless the individual used, possessed, or was impaired by marijuana at the place of employment or during working hours and unless failing to take such adverse employment action would cause the employer to lose a monetary or licensing-related benefit under federal law or regulations. Conversely, in at least five other states (California, Colorado, Montana, Oregon and Washington), courts have held that employers were permitted to take adverse action against employees for off-site marijuana use revealed in the context of employer-mandated drug tests. Thus, these employers could legally refuse to accommodate an employee’s use of medical marijuana, even when that use conformed to the state’s medical marijuana laws. In the states that permit adverse employment action, the courts are concerned about granting “legal” status to a substance that is federally illegal and recognize that their states’ medical marijuana statutes simply do not speak to the intersection between an employee’s off-site medical marijuana use and the effect of that use on employment. A few of these courts also express a commitment to maintaining the current boundaries of the at-will employment doctrine by refusing to recognize a public policy exception to its scope in favor of accommodation for medical marijuana use.
The language of the Massachusetts medical marijuana law (specifying that it does not require accommodation of on-site medical use of marijuana in any place of employment) is substantively similar to the law in states whose courts have permitted adverse employment action on the basis of off-site, certified medical marijuana use. It remains to be seen whether the MCAD or Massachusetts courts will adopt the reasoning of those states in similarly refusing to grant protection against such action.
In the interim, Massachusetts employees and employers should remain mindful of the continued prohibition against marijuana possession under federal law and of the possibility that marijuana use, even if conducted away from one’s place of employment and for certified, medical purposes, may still provide a basis for adverse employment action in Massachusetts. Employers may also want to re-visit who they are subjecting to drug tests and why. Certainly, a blanket prohibition against drug use by employees in safety sensitive positions is understandable and depending upon the particular position, may be mandated by federal law (e.g., crewmembers upon passenger vessels governed by United States Coast Guard statutes and regulations; truck drivers governed by the DOT). On the other hand, an administrative position, like the one for which the complainant in the recently filed MCAD charge was reportedly hired, may not be the stuff of an automatic exclusion from employment if test results are positive, especially where the applicant or employee is disabled; uses medical marijuana for the disability; and otherwise conforms to the employer’s workplace and performance standards while at work.