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DISPENSING KNOWLEDGE

Staying Informed About Medical Cannabis and Workplace Regulations
Posted by Andrew Sharp

You may be worried about getting into trouble at work for using cannabis as part of your treatment. The Act for the Humanitarian Medical Use of Marijuana has established obvious legal protection for citizens who have lawful prescriptions to use cannabis as part of their treatment, but how far do those protections extend into the workplaces of patients?

Here’s the deal: with respect to places of employment, the new law has kept things “the way they were.” Employers are still allowed to determine how the Medical Use of Marijuana (MMJ) is handled in their workplace. In other words, there are not new, explicit employment protections for patients who have an MMJ Program card.

This may soon change if a bill (H. 2385) calling for that protection passes in the Massachusetts House of Representatives. If state legislators sign this bill into law, patients will no longer be forced to choose between their health and their job.

Because it's a relatively new area of the law, both employers and employees will need to stay informed of how the courts and the state are interpreting the laws governing the Medical Use of Marijuana.

What Are the Laws?

The Act states “there should be no punishment under state law for qualifying patients . . . for the use of medical marijuana.”

The Act also states that, with regards to state prosecution and penalties, any patient abiding by the law, “shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions.” In short: if someone has been legally prescribed medication, they should not be discriminated against.

But what happens if someone with an MMJ card fails an employer’s drug test? What happens if someone is not hired because they are legally treating a disability or a disease with cannabis? While Massachusetts law is straightforward about MMJ patients being protected from civil penalties, it is silent about whether or not patients are protected from adverse employment actions (being fired or not being hired).

Tasked with issuing the regulations called for by the new cannabis laws, the Department of Public Health wrote that “[nothing] shall be construed to limit the applicability of other law as it pertains to the rights of landlords, employers, law enforcement authorities, or regulatory agencies.” That means that employers are free to use a cannabis-positive drug test as grounds to fire or not hire an employee.

If someone gets in trouble at work for having their MMJ card, what options and resources do they have?

Current MA Supreme Court Case Could Provide Answers

Massachusetts is an “at-will” state, which means employers can fire employees without any reason, as long as the motivation for termination is not illegal. Where does that leave a citizen who is using cannabis, a legal drug, to treat a condition?

This question is at the heart of an ongoing case in Massachusetts’s highest court. After telling her employer about her Crohn’s disease and the cannabis she was using to treat it, Cristina Barbuto was fired after she failed a company-required drug test. Is she being discriminated against unfairly? Or, as her employer argues, do Massachusetts’s cannabis regulations provide no restriction for firing an employee because of a failed drug test? In similar cases around the country, courts have tended to side with employers.

Further complicating the situation is that cannabis is still illegal in the eyes of the federal government (despite appeals from a bi-partisan group of senators). The Massachusetts law says that “[n]othing in this law poses an obstacle to federal enforcement of federal law.” And so employers, like Cristina Barbuto’s, claim that tolerating cannabis use by their employees goes against federal law.

The Road Ahead

Passing the Act for the Humanitarian Medical Use of Marijuana was a giant step toward sensible cannabis policies in Massachusetts. Just as with any other complex legislation – concerning cannabis or not – it’s going to take some time to sort out all the “gray areas” that arise.

As the Massachusetts state rules evolve, it’s crucial that patients and caregivers stay up-to-date. It’s even more important, however, for those who use cannabis legally to advocate for their rights by letting their elected officials know just how beneficial their natural treatment is.

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