Employment Law Alert

Massachusetts Medical Marijuana Law

February 1, 2013

In November 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 Massachusetts’s Act for the Humanitarian Medical Use of Marijuana (the “Act”) became effective on January 1, 2013. The Department of Public Health of the Commonwealth of Massachusetts (the “DPH”) has until May 2013 to issue regulations consistent with the Act. Until the regulations to be issued by the DPH are in place, medical marijuana dispensaries cannot open and registration cards cannot be issued. During the time the DPH is drafting the regulations the medical marijuana law allows for a written recommendation of a qualifying patient’s physician to act as a registration card for medical marijuana. The law allows qualified patients to possess up to a sixty day supply of marijuana and directs the DPH to define the meaning of such a supply.

While the Act does not directly implicate the employment relationship, there will undoubtedly be workplace issues which will arise concerning the use of medical marijuana.

Debilitating Condition and Patient Coverage

The Act applies to patients who are diagnosed as suffering from a “debilitating medical condition.”  It defines such a condition as cancer, glaucoma, positive HIV status, AIDS, Hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, Parkinson’s disease, multiple sclerosis, or other conditions as may be diagnosed by a physician.

In order to be covered under the Act, an individual must receive a written certification from a physician that he or she suffers from a “debilitating medical condition.”  In addition, the physician must state that the medical benefits to the individual of using marijuana will, in the physician’s opinion, outweigh the health risks. 

Once the patient obtains such a certification from a physician, the patient must apply to the DPH for a registration card.  Once issued, the card may be used to verify that the patient has received written certification from a physician, and is exempt from Massachusetts criminal and civil penalties relating to the use of marijuana.  Thereafter, patients may obtain a 60 day supply of marijuana from a non-profit medical marijuana treatment center authorized by the DPH.  Up to 35 such treatment centers may be approved by DPH by January 1, 2014.  Under certain circumstances, patients may be permitted to cultivate medical marijuana for the use of that patient only.

Potential Issues for Employers

Despite the Act, employers may continue to enforce current drug testing policies for employees and applicants.  This includes any policies which prohibit the use of marijuana in the workplace, including taking disciplinary action against employees who are under the influence of marijuana while at work.  Courts in other states that have passed similar laws have upheld employers’ workplace restrictions.  In Michigan, for example, a district court and a federal appellate court both held that Michigan’s medical marijuana law did not restrict a private employer’s drug policies after Walmart fired an employee for testing positive for marijuana even though he had a registry card and used marijuana for medical reasons.

The Act also does not: (a) require that an employer accommodate the use of medical marijuana in the workplace, (b) permit the operation of a motor vehicle, boat or aircraft while under the influence of marijuana, (c) require that the cost of medical marijuana be covered and/or reimbursed under any health insurance policy or by any government agency, or (d) require any health care provider to authorize the use of medical marijuana. 

Conclusion

The Act does not, at first glance, appear to add obligations to employers or restrict their ability to implement restrictions on marijuana use in the workplace.  As with any health-related issue, however, situations may arise that involve the Act and employers’ obligations under disability and privacy laws.  We are hopeful that the DPH regulations will further clarify workplace issues for employers under the Act, and Morse will send out additional information concerning the Act once the DPH issues its regulations. 

For more information on this topic, please contact a member of our Employment Practice Group.

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