| | Advanced Search

 

Tom Finneran: Running on Envy—America's doctors run the gauntlet of envy

Arthur Schaper: Justina: Still Not Free—The crusade continues

Central MA Up + Comer: Vision Advertising CEO Laura Briere—Meet Central MA's rising stars...

FlyORH: Vote for Worcester in JetBlue Contest—Supporting ORH and JetBlue....

Catch the Moscow Festival Ballet With Your WOO Card—Where will you be WOOing this weekend?

Acclaimed Author Leah Hager Cohen to Give Reading at Holy Cross—Will read from new novel 'No Book but…

NEW: Michael Graham Taking Conservative Talk Show to Atlanta—Headed for a warmer climate

NEW: Worcester’s Wormtown Brewery Wins Denver Int’l Beer Award—A major honor bestowed to a local brewery

Paul Giorgio: Elizabeth Warren is Right on Student Loans—MINDSETTER Paul Giorgio examines the student debt crisis

Central MA College Standout: Smith College’s Megan Baker—Spotlight on a bright student...

 
 

Medical Marijuana Users in Massachusetts Could Lose Their Jobs

Wednesday, February 05, 2014

 

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."

 

Related Slideshow: New England States with Highest Marijuana Arrest Rates

Prev Next

6. Massachusetts

National Rank for Arrests per Capita: 51

2010 Arrests Per Capita: 18

National Rank for Raw Arrests: 49

2010 Raw Arrests: 1,191

Photo: Flickr/Blind Nomad

Prev Next

5. Vermont

National Rank for Arrests per Capita: 48

2010 Arrests Per Capita: 119

National Rank for Raw Arrests: 51

2010 Raw Arrests: 737

Photo: Flickr/Victor

Prev Next

4. New Hampshire

National Rank for Arrests per Capita: 33

2010 Arrests Per Capita: 210

National Rank for Raw Arrests: 41

2010 Raw Arrests: 2,769

Photo: Flickr/Blind Nomad

Prev Next

3. Rhode Island

National Rank for Arrests per Capita: 31

2010 Arrests Per Capita: 214

National Rank for Raw Arrests: 43

2010 Raw Arrests: 2,243

Prev Next

2. Maine

National Rank for Arrests per Capita: 30

2010 Arrests Per Capita: 214

National Rank for Raw Arrests: 40

2010 Raw Arrests: 2,842

Prev Next

1. Connecticut

National Rank for Arrests per Capita: 23

2010 Arrests Per Capita: 247

National Rank for Raw Arrests: 25

2010 Raw Arrests: 8,815

Prev Next

Number One Overall

Washington D.C.

National Rank for Arrests per Capita: 1

2010 Arrests Per Capita: 846

National Rank for Raw Arrests: 34

2010 Raw Arrests: 5,115

Photo: Flickr/Torben Hansen

 
 

Related Articles

 

Enjoy this post? Share it with others.

Comments:

Iron Mike Farquhar

Frankly Zeke, for all of the alleged benefits of 'medical marijuana', there are loads of folks who can't stand the stink of it on the users.

Bad enough to be around a person with poor personal hygiene, but the reek of marijuana can make some people sick.

david matson

Nice piece. There is a current case before the Colorado Supreme court that will decide whether it is allowable to fire an employee for failing a drug test who uses legal medical marijuana.

http://www.thecannabist.co/2014/01/27/colorado-supreme-court-to-review-firing-over-marijuana-brandon-coats/3309/

With legalization a simple fact, the civil right of employees is a serious issue.

Iron Mike Farquhar

The 'Civil Rights' of which employees David? The smokers, – or their co-workers who don't want to endure 8+ hours a day of second-hand stink?

david matson

Obviously you have a weird personal issue with this.

No one is using marijuana while on the job.

There are lots of ways to consume marijuana that has no smell. Edibles, vaporizers, etc.

Marijuana does not smell any more than cigarettes, which people have a legal right to smoke during work breaks and lunch hour.

Your experience with a particular person who may have had hygiene issues has little to do with the needs of patients whose lives and productivity can be greatly enhanced by medical marijuana.

Kent Fager

This makes me furious. I had an employee who wanted to get a pot card because he injured his back in a car accident while stoned and drunk. He was my truck driver. Okay now he gets a pot card and smokes his brains out the night before or even that morning. Now it's up to me as a business owner to decide if he is under the influence at work? Then if he doesn't appear stoned as his tolerance has built up, he drive my truck and hits and kills woman and babies. The police test him on the scene and he is positive for pot in his bloodstream. Who do you think is going to get sued? Do I have the right to fire him? even if there is an intoxication limit and he is under it gives more ammo to go after the business owner.

Thanks iron Mike for stating the obvious but how about gong further. Dr stoner starts a machine with your hand in it or forgets where he is and runs you over with a fork truck. Was he really stoned or a little stoned?

If you have a medical marijuana card that should mean that you are in such a predicament that you should not be able to drive. If you are in so much pain or debilitated so much that regular medications like Tylenol don't work then you must be disabled. If you need pot to feel better to function wouldn't you have to be stoned all the time. If you can get by an 8 hour day at work without being under the influence then why do you need it at all?

Iron Mike Farquhar

Kent, we are well down that slippery slope....

Democrats in the Legislature want the public as stoned as possible, - because just dumbing them down in our schools just doesn't guarantee them enough uninformed voters or uninvolved welfare recipients. They WANT the general public stoned!

Damn the consequences! [What ELSE could explain a government / governor that thinks it's 'JUST FINE' to place at-risk kids in foster care with convicted criminals].

So you're on trial – facing years in prison. Is your attorney 'just a little stoned'? Are the jurors 'just a little stoned'?

You're in the hospital ER – the doctor tells you he's shipping you down the hall for emergency surgery... Is the surgeon 'just a little stoned'?

The kid mowing your lawn,...'just a little stoned'...when he cuts his hand off?
------------------

As a back-pain sufferer myself, I fully sympathize with those who suffer real pain. But the legislature has opened Pandora's Box – and they knew full well what they were doing!

Kent Fager

Iron mike you seem to get it. The constant assault common sense is truly frightening.

david matson

There will always be some professions that consuming marijuana at all is unacceptable. Police officer, airline pilot, and truck driver.

You don't want those people taking vicodin on the job, either.

Iron Mike Farquhar

It's not just an assault on common sense,...

- it's an assault on our Judeo-Christian values [NYC's new communist mayor de Blasio wants to close schools for Buddhist and Muslim holidays]

- it's an assault on our God-given rights and our Constitution

- it's the ultimate expression of elitism and racism, - i.e. “We in Government know BEST! Just shut up, pay the taxes we enact, and here – get high and forgetaboutit!”

Kent Fager

Mr. matson...let me put the problem in perspective.

Why don't you name some jobs that are acceptable to be stoned at and you will better see there are very few if any. You cant even work at a pot dispensary if you are stoned. There is no job out there that if you are stoned you don't put your life on the line, someone else's life on the line, or put you company in jeopardy or situation of liability. I'm sure there are plenty of stoners that don't care if their boss gets sued but if the government gave protections to stoners that they cant be discriminated against in the workplace this country is in much worse trouble than it already is.

So if you know some stoner jobs I would love to know what they are.

david matson

I am not suggesting is it acceptable to be drunk or high at any job.

That doesn't mean people shouldn't be allowed to drink or smoke or take medicine on their own time.

I am saying there are a small and special class of people where drug testing for off-hours use is a reasonable restriction. Doctors, airline pilots, truck drivers, people with nuclear launch codes, should probably never partake of any substance that could cause impairment.

But do you think a guy who answers the phone in customer service, has NEVER had a single problem at work, and is an exemplary employee should be fired because he failed a drug test for legal medical marijuana? Even though it has literally no impact on his job performance. There is no suggestion that he was EVER high at work.

So why should he be fired?
http://www.thecannabist.co/2014/01/27/colorado-supreme-court-to-review-firing-over-marijuana-brandon-coats/3309/

Again, ANY employee can always be fired for cause. If you are a bad employee, and show up drunk, you can and should get fired.

Iron Mike Farquhar

>> be allowed to drink or smoke or take medicine on their own time.

You mean, like on their way to work...? Maybe in the plant parking lot before they come in and clock in...?

Until you've actually had to DEAL with substance abuse in an industrial workplace - you have no CLUE how dangerous it is!

Kent Fager

The problem is what is the concentration THC limit. This discussion is about those with medical marijuana cards. My point is if you get a medical marijuana card it is because conventional treatments "don't work" there may be a few things it is good for but the advocacy groups claim it treats anything from Whiplash to hepatitis "c". They say it treats back pain...what about thigh pain? What about wrist pain. The list goes on. If you need it to treat back pain where conventional medicines have failed how can you get through the day without using it. What would be the rules for the duration of time you can smoke before work. If you have to be at work at 8:00 am can you get up an smoke at 4:00 am? Should the company be obligated to check your THC levels to determine if you are high and can function properly? The test is over $100 dollars.

So you have sighted one job and a scenario that assumes a casual smoker should not be fired for detecting it in their system. Soon it will mean as long as you are under .08 alcohol level too. That's 4 beers to be .08 in a 200 # man.

How about fork truck operators? How about people running multimillion dollar machinery. How about tractor trailer drivers?

My point is having the government protect employees of private corporations from disciplinary action due to having permission to have thc in your system in insane. How about Percocet or oxycontin? If you are in so much pain and you need these drugs ...stay home. Don't force me to monitor you if you are high.

david matson

Kent, you keep missing the point.

As an employer, you have a perfect right to require your employees to not be impaired or high to the slightest degree while on the job. Not one drink, not one percocet, not one hit off a joint.

You should NOT have a right to fire an employee for possibly being high on his day off. Especially from legal substances.

For some jobs, like operating heavy machinery, it is reasonable to have a zero tolerance policy.

But if a guy is answering a phone, there is no risk to others, and no employer liability. Your employer rights shouldn't outweigh a person's right to not be in pain.

Iron Mike Farquhar

Ridiculous! A person answering a phone is the public face of the company.

If I call a company and someone answers who sounds either stupid or stoned, - I take my business elsewhere.

AGAIN, while I fully sympathize with those in genuine pain – I ran my business for years in varying degrees of pain. My voice on the phone was often the ONLY contact clients had with me. So while I sympathize, nobody's pain is justification for putting an entire business at risk – to include all the other paychecks that depend on that public image.

Kent Fager

As it stands now I can fire someone for no reason whatsoever. In most states that is the reality. I can say go home now. Your position is terminated. Some states provide some protections for medical marijuana use. I don't know what they are but the pot advocates want the drug classified as if it is a prescription drug and they want the same protections that prescription drug users have. I don't think employers should have to be subjected to protecting the employee for any kind of drug prescription or not. If a person has joint pain some doctors will prescribe narcotics for that. if they have a script for it and the pain is mostly gone and they can work, but the script is still legit, should I have to tolerate that in the employees system?

the pot advocates will push this further than what is logical. If an employee has a pot card and I test him and find residual and the law protects him from that, and I fire him for being late what do you think the pothead is going to sue me for? It sets up a situation where if I did not fire him for the previous 10 times he was late because I was being a nice guy, if he gets fired another reason he will say he is discriminated against because of the pot card. believe me when big companies are involved the lawsuits will start flying. The liberals want to find way to weasel in on forcing employers do a lot of things that are plain not rational.

If you say they should not be fired for what they do on their own time then you should be able to tell me what parameters an employer can and cannot fire for pot use.

As it stands now there is no legal limit for alcohol. a zero tolerance policy can be enforced. What should pot be different? that is what they are advocating.

david matson

Iron Mike,

Of course you can fire someone who sounds stupid or stoned on the phone. That is called being fired for cause.

If you find out someone goes to AA meetings, but there has never been a single problem with there work, should you fire them because they might relapse and show up drunk one day? Ridiculous.

And yes, Kent, you can absolutely fire someone FOR NO REASON at all.

But you can't fire someone for a reason that is a violation of their civil rights. You can't fire someone because you found out they have a interracial spouse. Taking legal medication that DOES NOT IN ANY WAY AFFECT JOB PERFORMANCE should be a civil right.

Iron Mike Farquhar

David, - you sound like an 'expert' who never ran a business....

I don't want to fire someone 'for cause' – AFTER he screws up a customer relationship.

I don't want to have to bear the cost of hiring and training a replacement.

I DON'T WANT a STONER working for me in the FIRST PLACE. Paying customers are hard to replace! A business lives or dies by the QUALITY of their product or service, AND by the IMAGE the public has of them.

First impressions are lasting. I won't even go through a checkout line in a store if the cashier has facial piercings / tattoos. I've left groceries unpurchased and walked out...and not gone back. That's MY right!




Commenting is not available in this channel entry.