Medical Marijuana Users in Massachusetts Could Lose Their Jobs

Wednesday, February 05, 2014

Zeke Wright, GoLocalWorcester Contributor

Anti-discrimination laws won't protect medical marijuana patients in the workplace in Massachusetts.

Because marijuana remains a federally scheduled drug, and the state's recent medical marijuana law doesn't outline employers' obligations, registered patients in the Commonwealth will be at risk of losing their jobs or not being hired as a result of legally prescribed medication.

The legal issue is one of many revolving around the divide between state and federal marijuana policy.

Massachusetts' law identifies nearly a dozen medical conditions for which marijuana may be used as a treatment, such as for pain or nausea. Many of the conditions would typically allow patients to continue work and their daily routines.

“At the end of the day it's still illegal under federal law, and that gives employers a lot of rights,” according to Kabrina Chang, an assistant professor in the Markets, Public Policy and Law department at Boston University School of Management.

Chang called workplace rights one of the larger policy issues to come out of medical marijuana reform. “For the communities that pass specifically medical marijuana laws, it never occurred to them that the people they were trying to help would lose their jobs.”

“I think people getting fired, that's going to raise public awareness.” And perhaps change future medical marijuana laws, one way or the other.

A proponent of the reforms, the Marijuana Policy Project's latest estimate tallies about 1 million medical marijuana patients across the U.S.

Should be treated like use of prescription medication

"(Our) position is that medical marijuana use should be treated like use of prescription medications by employers. Patients who use medical marijuana under the supervision of their physician when they are not in the workplace should not be punished by employers,” said Matthew Allen, the executive director of the Massachusetts Patient Advocacy Alliance.

“How employers deal with employees who are medical marijuana patients is one of those issues that remains unresolved because of political obstruction to the FDA approval process at the federal level,” Allen said.

The Massachusetts Act for the Humanitarian Medical Use of Marijuana does not include protections for registered patients, but only states that nothing in the law “requires any accommodation of any on-site medical use of marijuana in any place of employment.”

Nondiscrimination standards in the Americans with Disabilities Act meanwhile precludes illegal federal controlled substances, meaning employers can act (fire) on the basis of such use, including marijuana.

Only five (Delaware, Arizona, Rhode Island, Connecticut, and Maine) of the 20 states that currently allow medical use provide some level of protection for employees who lawfully use the drug outside the workplace.

A 'management headache'

Already in other states, registered medical marijuana users are facing repercussions. And courts are siding with employers.

In one wrongful employment termination suit, Ross v. RagingWire Telecommunications, California's Supreme Court ruled in 2008 that it wasn't a violation of state law for an employer to fire an employee who tested positive for marijuana, even though the employee was legally prescribed the drug for medical purposes.

In Michigan, Joseph Casias, a man with sinus cancer and an inoperable brain tumor, was a registered medical marijuana patient who twisted his knee at work in 2009. A Wal-Mart employee for five years — and “associate of the year” in 2008 — Casias was fired following a drug test prompted by his workplace injury.

Courts in Colorado, Washington, Montana, and Oregon have also sided with employers who've terminated employees for medical marijuana use.

“The general consensus in the courts and the legal commentaries is that these laws do not require employers to modify their employment practices, drug-free workplace policies, drug testing policies, or accommodation policies,” writes Daniel B. Klein in a June 2013 article for the Massachusetts Bar Association. “These courts have found that because federal law preempts state medical marijuana laws, medical marijuana users authorized under state law are not protected from employer drug testing policies.”

“The only solution I can really see is if the federal government changed the schedule — marijuana is Schedule 1,” Chang said. That most-restrictive federal category is intended for drugs with no accepted medical use and a high potential for abuse, like heroin.

Physicians, patients need to consider implications

“As it appears that the Marijuana Law had little effect on the laws governing employer drug-testing and drug use policies, physicians and patients should carefully consider the implications of medical marijuana use in the employment setting,” writes attorney William Frank in a brief for the Massachusetts Medical Society.

The patient advocacy alliance's Allen says his group's focus for now is getting existing medical marijuana law provisions implemented.

“When that is done we will take stock of what is working and what is not, and address issues as appropriate,” Allen said. “We will be looking at the affordability of medicine, housing issues, employment issues, and other concerns as they are identified by patients, and then figuring out if these issues are best addressed through legislation, changes in regulations, public education, or other approaches."