Medical Marijuana Vote Creates Hazy Challenge for Employers

Posted by Tom Jones on Nov 8, 2012, 11:19:00 AM

The implications of Tuesday’s vote by Massachusetts residents to eliminate state criminal and civil penalties for the medical use of marijuana by qualifying patients remain a bit – ahem - hazy for Bay State employers.

As a brand new statute, the impact of the law will remain unknown until it takes effect on January 1, and until the final regulations have been issued by the Department of Public Health.

In the meantime, it is easy to foresee potential problems for employers. While the law explicitly prohibits the use of medical marijuana on-site at the workplace, employers are likely to face the question of what to do with an employee who doesn’t use the drug at work but reports to work under the apparent influence of marijuana.

How will employers determine if the person is capable of work? Should the employer move to terminate the employee because of marijuana use? Should the employer demand medical documentation of the need for marijuana? And what happens when the employee produces such documentation? Much remains uncertain until the courts and perhaps the Legislature begin to sort out the issues.

Only patients diagnosed with a debilitating medical condition, such as cancer, glaucoma, HIV-positive status or AIDS, hepatitis C, Crohn’s disease, Parkinson’s disease, ALS, or multiple sclerosis will be able to access the marijuana. Any participating patient would also have to obtain a written certification, from a physician with whom the patient has a bona fide physician-patient relationship, that the patient has a specific debilitating medical condition and would likely obtain a net benefit from medical use of marijuana.

The law does not require any accommodation of on-site medical use of marijuana in any workplace.

Assuming a person meets these two criteria, the law would allow a patient to possess up to a 60-day supply of marijuana for a person’s personal medical use. The state Department of Public Health (DPH) would oversee the implementation of the law by taking steps such as:

  • Decide what amount would be a 60-day supply.
  • Registering patients and caregivers
  • Regulating the up to 35 treatment centers across the state

The DPH would also have the authority to revoke any registration for a willful violation of the law and the state could seek criminal penalties against any treatment center using a DPH issued license fraudulently.

There are indications that implementation of the law may be a long way off. Radio station WBUR reports today that medical marijuana dispensaries will not be welcome in every city and town.

“We do not want these dispensaries in the town of Wakefield,” Stephen Maio, the town administrator, told WBUR. Wakefield residents will consider a ban on medical marijuana dispensaries at town meeting next week. Maio says town leaders will urge passage of the ban because they’re concerned that medical marijuana will increase drug use overall.

One idea afloat on Beacon Hill is a six-month delay of the law so that cities and towns would have time to look at the effects of medical marijuana. The Massachusetts Municipal Association supports the delay.

Employers can take steps now before the law takes effect:

  • consider whether to adopt a drug testing policy;
  • make sure the job-application process contains information on the drug testing policy;
  • make sure their zero tolerance policies are clearly communicated (at time of hire and  during employment);
  • make sure such policies are uniformly enforced;
  • make sure your applicants and employees sign for and acknowledge their understanding of such policies.

To help keep you abreast of the possible impact of this new law, AIM will be hosting a workplace marijuana webinar in January with employment lawyer Amy Royal. Information will be forwarded to members as soon as it is available.  

Topics: Issues, Employment Law, Human Resources

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