Kennedy: Sifting Through the Weed

97

Sifting Through the Weed: Why Employers and Employees Need

Guidance on Massachusetts’ Medical Marijuana Laws

NOTE

CRYSTAL KENNEDY*

ABSTRACT

Relatively recently, marijuana’s treatment before the law underwent a significant transformation. Arizona, along with twenty three other states, now authorizes medical marijuana use. Washington and Colorado legalized marijuana for recreational purposes. Most of these permissive laws directly violate the Controlled Substances Act of 1970. Given the challenges associated with implementing comprehensive marijuana reform, Massachusetts has much to learn from the experience of these other states, particularly in the employment context.

In Arizona, a sharp debate erupted over medical marijuana laws as applied in the public and private workplace environments. For instance, Arizona does not permit employers to terminate medicinal users, with some exceptions. The clash between medical marijuana laws and drug-free workplaces is the subject of significant controversy among scholars. Arizona can provide useful lessons for Massachusetts as the state implements its marijuana initiative. Specifically, Massachusetts should closely consider how this initiative would impact employers and employees. The state should follow Arizona to exempt employees from

* J.D., New England Law | Boston, 2014; B.A., University of Mary Washington, 2011.

Thank you to my family and friends for always supporting me in my endeavors. The New

England Law Review Editors and Associates for endlessly reading and perfecting this article.

Lastly, to the New England Law Library Reference Librarians, thank you for all the help

refining this topic into what it has become.

98 New England Law Review On Remand v. 48 | 97

termination, and allow patients to take medicine without fear of losing their job.

INTRODUCTION

The United States has a love-hate relationship with marijuana.1 In colonial times, the cannabis plant was a cash crop for the thirteen colonies.2 During the Prohibition era, those who successfully banned alcohol also tried to ban marijuana.3 While initially unsuccessful, efforts to ban marijuana succeeded four years after prohibition ended.4 Now, however, many states allow the use of marijuana for medical purposes.5 Recently, Massachusetts joined the ranks of states permitting the use of marijuana for medical purposes, but Massachusetts failed to consider the effects medical marijuana would have on employer and employee rights within the workplace.6 Arizona is one state that did consider the effects of medical marijuana laws on employer and employee rights.7 Massachusetts should follow in Arizona’s footsteps by creating an exemption for employees who utilize medical marijuana.8 With a few important changes, Arizona can provide Massachusetts with a usable example of how to apply its

1 See generally RUDOLPH J. GERBER, LEGALIZING MARIJUANA: DRUG POLICY REFORM AND

PROHIBITION POLITICS 1–15 (2004) (discussing the political history of marijuana from the

founding fathers to George W. Bush’s presidency); DAVID F. MUSTO, THE AMERICAN DISEASE:

ORIGINS OF NARCOTIC CONTROL 210–29 (3d ed. 1999) (describing the history of marijuana from

the late 1800s to the 1930s). 2 See GERBER, supra note 1, at 2–4; Michael D. Moberly & Charitie L. Hartsig, The Arizona

Medical Marijuana Act: A Pot Hole for Employers?, 5 PHX. L. REV. 415, 420–21 (2012) [hereinafter

Moberly & Hartsig, A Pot Hole for Employers?]. 3 See GERBER, supra note 1, at 3, 9. 4 See U.S. CONST. amend. XXI (ending prohibition in 1933); Marihuana Tax Act of 1937,

Pub. L. No. 238, 50 Stat. 551, 551 (1937) (enacting the first law negatively affecting the sale of

marijuana). 5 See State Medical Marijuana Laws, NCSL, http://www.ncsl.org/research/health/state-

medical-marijuana-laws.aspx (last updated Apr. 8, 2014). “‘Medical use of marijuana’ shall

mean the acquisition, cultivation, possession, processing (including development of related

products such as food, tinctures, aerosols, oils, or ointments), transfer, transportation, sale,

distribution, dispensing or administration of marijuana, for the benefit of qualifying patients

in the treatment of debilitating medical conditions, or the symptoms thereof.” MASS. GEN.

LAWS ch. 94C § 1–2 (2006). Some states also allow the use of marijuana for recreational

purposes. See State Medical Marijuana Laws, supra. 6 Cf. Moberly & Hartsig, A Pot Hole for Employers?, supra note 2, at 438–39 (discussing the

effects of Arizona’s medical marijuana act on private employers). 7 See ARIZ. REV. STAT. ANN. § 36-2813 (2010) (West) (requiring no landlord, employer, or

school to discriminate against individuals who use medical marijuana so long as the

individual has a valid registration card). 8 See, e.g., id.

2014] Si f t ing Through the Weed 99

marijuana initiative towards employers and employees.9 Additionally, to learn from Arizona's lack of a definition for "impaired" within its statute, the Massachusetts legislature should provide guidance to employees and employers by defining "intoxication" in its statute as: diminished mental and physical ability to reasonably fulfill one’s job responsibilities as a result of the consumption of medical marijuana.10

This Note proposes an amendment to Massachusetts’ current marijuana laws to assimilate these laws with employment laws of federal employers/employees, public Commonwealth employers/employees, and private employers/employees. Part I of this Note explains the current marijuana laws from the legislative, judicial, and executive branches of the federal government. Part II discusses Arizona and Massachusetts’ medical marijuana laws and the federal response, if any, to those laws. Part III analyzes what Massachusetts should require of federal employers regarding federal employees’ use of medical marijuana. Part IV discusses the dilemma created by the current Massachusetts medical marijuana laws concerning the rights of both employers and employees. Part V proposes a solution to the dilemma discussed in Part IV.

BACKGROUND

I. The Federal Strong Arm Against Marijuana: Current Laws Regarding Marijuana

It is well established that the Legislative Branch possesses the power to enact laws,11 the Executive Branch possesses the power to enforce those laws,12 and the Judicial Branch ensures neither the Executive nor Legislative Branch violate the Constitution while utilizing their powers.13

In 1970, Congress utilized its Commerce Clause power to ban the use and sale of marijuana for any purpose.14 Congress classified marijuana as a Schedule I drug, defining it as highly addictive and having no medical purpose.15 This use of the Commerce Clause was challenged but ultimately

9 Compare ARIZ. REV. STAT. ANN. § 36-2813 (showing a requirement for employers to

exempt medical marijuana users from termination based solely on the use of medical

marijuana), with MASS. GEN. LAWS ch. 94C, § 1-1 to -17 (showing that there is no requirement

prohibiting employers from discriminating against medical marijuana users). 10 See, e.g., BLACK’S LAW DICTIONARY 898 (9th ed. 2009). 11 See U.S. CONST. art. I, § 8. 12 U.S. CONST. art. II, § 3. 13 See U.S. CONST. art. III, § 2; see also Stephen R. Alton, Lecture, From Marbury v. Madison

to Bush v. Gore: 200 Years of Judicial Review in the United States, 8 TEX. WESLEYAN L. REV. 7, 10

(2001). 14 Controlled Substances Act of 1970, 21 U.S.C. §§ 801, 812 (1970). 15 See id.


found to be constitutional.16 Once the ban on marijuana was enacted, the Executive Branch was tasked with enforcing the law.17

A. Judicial Decisions Regarding Marijuana

In 2005, two individuals previously raided for growing their own personal supply of medical marijuana—in compliance with California state law—challenged Congress’s power to enact the Controlled Substances Act of 1970.18 One of the individuals, Raich, argued that Congress did not have the power under the Commerce Clause to regulate intrastate commerce of medical marijuana.19 The Supreme Court held that Congress had the ability to enact such a law pursuant to the Commerce Clause, relying heavily on Wickard v. Filburn, in which the Supreme Court held that the federal government could prohibit individuals from growing personal crops if it affected the interstate market.20 Some scholars believe this solidified the federal government’s authority to cease all marijuana use.21

B. Current Executive Decisions

Since the enactment of the Controlled Substances Act, each president has treated marijuana differently.22 President H.W. Bush continued the strong policy against drugs at large that Reagan implemented.23 Four years later, President Clinton argued for treatment instead of punishment for marijuana convictions.24 During President Clinton’s administration, the Executive Branch even allowed for a small amount of individuals suffering from cancer, including Vice President Gore’s sister, to receive marijuana

16 See Gonzales v. Raich, 545 U.S. 1, 22 (2005). 17 See U.S. CONST. art. II; GERBER, supra note 1, at 14. It is important to note that if Congress

really wanted to prohibit all uses of marijuana, there are a number of things they could do—

one of which is completely taking over regulation of marijuana from the states. Cf. Robert A.

Mikos, On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked Power to Legalize

Federal Crime, 62 VAND. L. REV. 1421, 1456 (2009) (“Congress has not yet sought to preempt all

state laws that protect marijuana users and suppliers from private sanctions.”). 18 Gonzales, 545 U.S. at 22 (holding that Congress had the authority to regulate the

intrastate commerce of medical marijuana because it affected the interstate commerce of the

illegal marijuana market). 19 Id. at 7–8. 20 See id. at 17–20; Wickard v. Filburn, 317 U.S. 111, 125, 128–29 (1942). 21 See Mikos, supra note 17, at 1439 n.73. 22 See generally GERBER, supra note 1, at 17–60 (discussing the different approaches each

president—from Nixon to George W. Bush—took towards marijuana). 23 GERBER, supra note 1, at 42. 24 See Kasey C. Phillips, Drug War Madness: A Call for Consistency Amidst the Conflict, 13

CHAP. L. REV. 645, 674–75 (2010) (“President Clinton . . . called for drug policy reform that

favored treatment over enforcement.”).


from federal dispensaries to assist with the individuals’ illnesses.25 President Bush, on the other hand, continued the efforts of his father and created a very aggressive policy against marijuana.26

At President Obama’s inauguration, he stated his belief that medical marijuana should be left to the states to regulate.27 He vowed, “I’m not going to be using Justice Department resources to try to circumvent state laws on this issue.”28 However, the DEA and other agencies pushed back—just as they pushed back on Clinton—raiding approximately 100 dispensaries within Obama’s first three years in office.29 All of the raided dispensaries complied with state laws.30 While the federal government’s actions may appear discouraging to the states, there does not appear to be a slowdown on legalizing medical marijuana use at the state level.31

II. State Medical Marijuana Laws and the Workplace

Currently, there are twenty four states that permit the use of medical marijuana with certain requirements, such as possessing a state-issued registration card.32 Many of these laws come from voter initiatives rather than endorsements from state legislatures.33 Most of the states that permit medical marijuana assert, “[t]he primary justification offered for the use of medical marijuana in the treatment of terminally ill patients is to prevent unnecessary suffering from chronic and unbearable pain that persists until death.”34 The medical benefits of marijuana include relief from nausea and chronic pain, as well as increased appetite.35 Proponents state that marijuana provides the best relief to individuals suffering from debilitating

25 See Dana Hill, Gore Backs Medical Marijuana, ABCNEWS (Dec. 15, 1999),

http://proxy.baremetal.com/druglibrary.net/olsen/DPF/Gore.pdf. 26 George W. Bush on Drugs, ON THE ISSUES,

http://www.ontheissues.org/celeb/George_W__Bush_Drugs.htm (last visited Jun. 3, 2014). 27 Tim Dickenson, Obama’s War on Pot: In a Shocking About-Face, the Administration Has

Launched a Government-Wide Crackdown on Marijuana, ROLLING STONE (Feb. 16, 2012, 9:55 AM),

http://www.rollingstone.com/politics/news/obamas-war-on-pot-20120216. 28 Id. (internal quotations omitted). 29 Compare id., with Phillips, supra note 24, at 674–75. 30 See Dickenson, supra note 27. 31 See, e.g., ARIZ. REV. STAT. ANN. § 36-2813 (2010) (West); MASS. GEN. LAWS ch. 94C, § 1-1

(2013). 32 See State Medical Marijuana Laws, supra note 5; see, e.g., ARIZ. REV. STAT. ANN. § 36-

2804.02. 33 See Jay M. Zitter, Propriety of Employer’s Discharge of or Failure to Hire Employee Due to

Employee’s Use of Medical Marijuana, 57 A.L.R. 6th 285, 297 (2010). 34 Id. 35 Lauren Cox, Medical Marijuana: Benefits vs. Risks, LIVESCIENCE (Nov. 5, 2012, 4:26 PM),

http://www.livescience.com/24554-medical-marijuana.html.


illnesses without excessive side effects.36 Once voters’ initiatives pass, the states’ public health agencies regulate all aspects of the laws, from permissible medical illnesses to distributors’ locations.37 The states require most every player in the medical marijuana project to be nonprofit—from the marijuana dispensaries to the caregivers of those using the marijuana.38

Unfortunately, however, most of these states fail to consider the effects of legalizing medical marijuana on employment law.39 Lower insurance rates incentivize employers to have drug-free policies, and as a result they are rarely interested in making exceptions for employees using medical marijuana.40 Even if the employees follow all state laws related to medical marijuana and never use the drug inside the workplace or during work hours, employers still have little incentive to allow an exception.41 Such discrimination against law-abiding citizens is unfair, and Massachusetts should account for it in its medical marijuana scheme.42

A. Arizona’s Medical Marijuana Act and the Federal Response

Arizona authorized medical marijuana use in 2010 through a voter initiative.43 The Arizona Medical Marijuana Act (“Arizona Act”) allows individuals with qualifying “debilitating medical conditions such as cancer, glaucoma, HIV/AIDS and hepatitis C to receive up to two and one-half ounces of marijuana every two weeks from dispensaries.”44 Minors are permitted to use marijuana as long as their guardians consent.45 The

36 See id. 37 See, e.g., MASS. GEN. LAWS ch. 94C, § 1-1 (2013). 38 See, e.g., ARIZ. REV. STAT. ANN. § 36-2804 (2010) (West); CAL. HEALTH & SAFETY CODE §

11362.765 (West 2013). But see N.J. STAT. ANN. § 24:6I-7 (West 2013) (requiring that the “first

two centers issued a permit in each region shall be nonprofit entities, and centers

subsequently issues permits may be nonprofit or for-profit entities”). 39 Zitter, supra note 33, § 2. 40 See, e.g., Loder v. City of Glendale, 927 P.2d 1200, 1222–23 (Cal. 1997); Dolan v. Svitak,

527 N.W.2d 621, 626 (Neb. 1995). 41 See DAVID EVANS, DRUG TESTING LAW, TECHNOLOGY AND PRACTICE § 1:8 (2014)

(explaining how this lack of employer incentive derives from the fact that employees abusing

drugs cost their employers approximately twice as much in compensation claims). 42 Cf. Michael D. Moberly & Charitie L. Hartsig, Smoke—and Mirrors? Employers and the

Arizona Medical Marijuana Act, ARIZONA ATTORNEY 30, 30 (July–Aug. 2011) [hereinafter

Moberly & Hartsig, Smoke—and Mirrors?], available at www.azattorneymag-

digital.com/azattorneymag/20110708/#pg33 (identifying Arizona as a state in which

employers “may not discipline a registered medical marijuana card holder” who tests positive

for the drug unless an exception applies). 43 ARIZ. REV. STAT. ANN. § 36-2801 (2010) (West); see also State Medical Marijuana Laws, supra

note 5. 44 ARIZ. REV. STAT. ANN. § 36-2801; Moberly & Hartsig, Smoke—and Mirrors?, supra note 42. 45 See ARIZ. REV. STAT. ANN. § 36-2804.03(B).


Arizona Act also allows certain individuals to grow their own cannabis plants.46

Unlike most states, Arizona’s Act specifically prohibits employers from discriminating against potential employees based on their medical marijuana use.47 Arizona employers also cannot take disciplinary action against current employees who test positive for marijuana if the employees possess valid medical marijuana registration cards.48 There are two exceptions: (1) if the employer could lose federal funding, or (2) if the employee exhibits impairment during work hours.49 Employers argue that employees’ work-product and efficiency will suffer as a result.50 Employers also argue that they fear firing an employee because the new regulations do not define the level of “impairment” an employee must exhibit to warrant disciplinary action.51 Due to this lack of clarity, there will likely be many cases in the coming years to interpret the vague Act.52

In response to the Arizona Act, the United States Department of Transportation informed employers under its control that the State’s medical marijuana laws do not supersede the federal ban on marijuana use.53 The Department of Transportation also reminded employers to continue drug testing employees and reprimanding those who fail drug tests.54

B. Massachusetts’s Interpretation of Medical Marijuana

In the 2012 election, Massachusetts’ voters considered the question of

46 Id. § 36-2801(1)(b)(ii); Moberly & Hartsig, Smoke—and Mirrors?, supra note 42. 47 ARIZ. REV. STAT. ANN. § 36-2813; Moberly & Hartsig, Smoke—and Mirrors?, supra note 42. 48 ARIZ. REV. STAT. ANN. § 36-2813(B)(1); see also Moberly & Hartsig, Smoke—and Mirrors?,

supra note 42. 49 Moberly & Hartsig, Smoke—and Mirrors?, supra note 42. It is important to note that the

latter exception does not allow employers to discipline their employees for the mere

possession of marijuana on work premises—the employee must be under the influence of the

substance to warrant disciplinary action. Id. 50 Id. 51 Id. (“Although the Act does not define ‘impairment,’ the Arizona Legislature recently

defined the term to mean being under the influence of marijuana to the extent that the

marijuana may ‘decrease or lessen’ the employee’s job performance abilities.”). 52 See generally id. (stating that the definition of “impairment” does not provide any

guidance to employers). 53 See DOT Office of Drug and Alcohol Policy and Compliance Notice, U.S. DEP’T OF TRANSP.

(Oct. 22, 2009),

http://www.dot.gov/sites/dot.dev/files/docs/ODAPC_medicalmarijuananotice_0.pdf; see also

Moberly & Hartsig, Smoke—and Mirrors?, supra note 42, at 31. 54 See Golden Eagle Distribs., Inc. v. Ariz. Dep’t Econ. Sec., 885 P.2d 1130, 1132 (Ariz. Ct.

App. 1994) (“[F]ailing a federally mandated drug test may justify an employer in terminating

an employee”); see also Moberly & Hartsig, Smoke—and Mirrors?, supra note 42.


whether individuals with debilitating conditions should be permitted to use medical marijuana.55 The initiative passed with 63% approval.56 The question presented to Massachusetts’ residents, however, did not address employers' or employees' rights—therefore, the enacted law does not address any employment law issues.57 The only exemption in the voter initiative says qualified patients will not be subject to criminal or civil penalties.58 Once codified, the Department of Public Health (“DPH”) solidified regulations and requirements—covering everything from who is permitted to distribute marijuana to how to obtain a medical marijuana registration card—and unanimously approved these regulations on May 8, 2013.59

The DPH regulations include: the quantity permitted for a sixty-day supply of marijuana, registration of nonprofit medical marijuana treatment centers, registration of medical treatment center dispensary agents, hardship cultivation registration, and medical marijuana registration cards for qualifying patients and designated caregivers.60 The DPH is not allowed to actually make laws, however; it is merely permitted to create regulations within the statutory bounds conferred by the Massachusetts legislature.61 Therefore, the DPH cannot make a regulation requiring an employer to exempt employees from termination for using medical marijuana.62

ANALYSIS

The ballot measure automatically created a law on January 1, 2013, and has since been codified.63 However, the ballot initiative fails to clearly state the current laws for employers and employees to follow regarding medical

55 See MASS. GEN. LAWS ch. 94, § 1-1 (2013). 56 Scott Gacek, Massachusetts DPH May Miss Medical Marijuana Deadline, DAILY CHRONIC

(Feb. 3, 2013), http://www.thedailychronic.net/2013/15248/massachusetts-dph-may-miss-

medical-marijuana-deadilne/. 57 See § 1-1; 2012 Information for Voters: Full Text of Question 3, SEC’Y FOR THE

COMMONWEALTH OF MASS.,

http://www.sec.state.ma.us/ele/ele12/ballot_questions_12/full_text.htm#three (last visited Jun.

5, 2014). 58 2012 Information for Voters: Full Text of Question 3, supra note 57; see § 1-1. 59 FAQ Regarding the Medical Use of Marijuana in Massachusetts, MASS. DEP’T OF PUB.

HEALTH, http://www.mass.gov/eohhs/docs/dph/quality/drugcontrol/medical-marijuana/

medical- marijuana-faq.pdf (last visited Jun. 5, 2014) [hereinafter DEP’T OF PUB. HEALTH]. 60 Id. 61 See id.; MASS. GEN. LAWS ch. 111D, § 2 (2014). 62 See §§ 1-1 to -17. 63 See id. § 1-1.


marijuana use.64 Employees assume that they cannot be fired if they abide by state law governing medical marijuana.65 On the other hand, employers assume that because employment laws have not changed, they still have the power to fire an employee for using marijuana.66 The Massachusetts legislature must amend the law, exempting all medical marijuana users from termination based solely on marijuana use.67 The Massachusetts legislature is the only governing body with the power to do so.68 The people of Massachusetts need clarity.69

The Massachusetts legislature does not have the same powers as Congress—for example, it cannot create a law that would bind the federal government.70 The Massachusetts legislature cannot regulate or allow for medical marijuana use by federal employees who work and reside in Massachusetts and should not attempt to do so.71 For non-federal public and private employees in Massachusetts, the Massachusetts legislature must include a statutory section that would create a termination exemption for employees who use medical marijuana, unless the individual is noticeably intoxicated while at work.72 Additionally, the Massachusetts legislature should take an approach similar to Arizona and recognize federal law requirements by allowing private employers to refuse to exempt their employees if doing so would result in a loss of federal funding.73 The Massachusetts legislature should also define the term “intoxication” to avoid excessive litigation.74 It should define “intoxication” as follows: diminished mental and physical ability to reasonably fulfill one’s job responsibilities as a result of the consumption of marijuana while at work.75

III. Federal Employers and the New Massachusetts Medical Marijuana Regulations

Federal employers do not fall under the Massachusetts medical

64 See id. §§ 1-1 to -17; DEP’T OF PUB. HEALTH, supra note 599. 65 See, e.g., Martha Bebinger, Marijuana, Both Legal and Illegal, Triggers License Confusion for

Doctors, Cops, WBUR (Feb. 19, 2013), http://www.wbur.org/2013/02/19/marijuana-laws. 66 See id. (discussing various licensed professions in which employers still believe they

have the ability to fire an employee for the use of marijuana). 67 See infra Part 0. 68 See supra text accompanying notes 61–62. 69 See infra Part IV. 70 See infra Part III. 71 See infra Part 0. 72 See infra Part 0. 73 See ARIZ. REV. STAT. ANN. § 36-2813 (2010) (West). 74 See Moberly & Hartsig, Smoke—and Mirrors?, supra note 42. 75 See infra Part 0.


marijuana laws because of the presence of the Supremacy Clause in federal legislation and the long-standing drug-free policy of federal workplaces.76 As previously stated, the Controlled Substances Act is the federal statute governing marijuana.77 The preemption section of the Act reemphasizes the Supremacy Clause and asserts the federal government's dominance.78 It also demonstrates the fact that the states have no ability to regulate any federal employer or employee.79

Almost all federal employers have a drug-free work policy.80 Accordingly, no federal employee can use medical marijuana, no matter what state law allows.81 This creates a conundrum for Massachusetts residents who work for the federal government:82 under Massachusetts law they are permitted to use medical marijuana, but because they are federal employees they will be fired for doing so.83 Unfortunately, there is nothing the Massachusetts legislature can do for these residents.84 Due to the lack of protection, federal employees that reside in Massachusetts should not use their medical marijuana unless prepared for the consequences.85

In order to be a drug-free work zone, regular drug testing is not required.86 Federal workplace drug testing is often random or performed during the hiring process87—the most rigorous is the armed services, which utilizes random drug testing as a deterrent measure upon suspicion of drug use.88 Unfortunately, scarce random drug testing does not mean that

76 See infra notes 77–85 and accompanying text. 77 See Controlled Substances Act of 1970, 21 U.S.C. § 801 (1970). 78 Compare id., with U.S. CONST. art. VI, cl. 2. 79 See 21 U.S.C. § 903. 80 See Paul F. Gerhart, Employee Privacy Rights in the United States, 17 COMP. LAB. L.J. 175,

180 (1995). 81 See 21 U.S.C. § 841; Drug-Free Workplace Requirements for Federal Contractors, 41

U.S.C. § 8102 (2011). 82 Compare 21 U.S.C. § 841, and 41 U.S.C. § 8102, with MASS. GEN. LAWS ch. 94C, § 1-1 (2013). 83 See 21 U.S.C. § 841; compare 21 U.S.C. § 841, and 41 U.S.C. § 8102, with MASS. GEN. LAWS

ch. 94C, § 1-1. 84 See supra Part II.B. 85 See Mandatory Guidelines for Federal Workplace Drug Testing Programs, 73 Fed. Reg.

228, 71,858, 71,879 (Nov. 25, 2008) (describing the consequences of testing positive for illegal

drugs). 86 See SHARON L. LARSON ET AL., DEP’T OF HEALTH AND HUMAN SERVS., WORKER

SUBSTANCE USE AND WORKPLACE POLICIES AND PROGRAMS 3 (June 2007), available at

http://oas.samhsa.gov/work2k7/work.pdf; Office of the Assistant Sec’y for Policy, Drug-Free

Workplace Advisor, U.S. DEP’T OF LABOR (Apr. 4, 2014),

http://www.dol.gov/elaws/asp/drugfree/drugs/dt.asp (describing different methods of drug

testing a drug-free workplace can use, including methods that are not regular or random). 87 See LARSON, ET AL., supra note 86. 88 See DEP'T OF THE ARMY, ARMY REGULATION 600–85, THE ARMY SUBSTANCE ABUSE

PROGRAM 2 (Dec. 28, 2012), available at http://www.apd.army.mil/pdffiles/r600_85.pdf.


federal employees can risk using their prescribed medical marijuana with no adverse effect.89 If the employer were to test randomly and the employee were positive for marijuana, the employer would then have grounds to terminate the employee.90 While the federal regulations do not require termination, drug use is grounds for termination under most employment contracts.91 Therefore, federal employees cannot and should not use medical marijuana unless prepared for the consequences of possible termination.92

IV. The Massachusetts Medical Marijuana Laws Must Change to Clarify the Rights of Employers and Employees

Without proper guidance from the Massachusetts legislature, two opposing assumptions will be made by public and private employers in Massachusetts: first, employers will assume they can still reprimand employees for the use of marijuana; and second, employees will assume they will not be reprimanded for using medical marijuana because Massachusetts law permits them to do so.93 Due to lack of legislation to the contrary, presently employers have discretion, leaving employees in a gray area when prescribed medical marijuana.94 These assumptions will create large amounts of unnecessary litigation for unlawful termination, as it has in California.95 It will then be up to the Supreme Judicial Court to determine whether an employer is permitted to terminate employees for using medical marijuana.96

Holding that Massachusetts residents can smoke medical marijuana, so long as they do not work for a drug-free employer, is bad public policy.97 The justice system is meant to ensure justice; holding that citizens cannot use a state-given right is in complete contrast to what the judicial system stands for.98 A holding of this nature would also create an unusable right for Massachusetts residents because they would be in the same position as

89 See, e.g., DOT Office of Drug and Alcohol Policy and Compliance Notice, supra note 53. 90 See, e.g., Employees Overview, U.S. DEP’T OF TRANSP. (Feb. 27, 2014),

http://www.dot.gov/odapc/employee. 91 See, e.g., id. 92 See, e.g., DOT Office of Drug and Alcohol Policy and Compliance Notice, supra note 53. 93 See generally Bebinger, supra note 655. 94 See MASS. GEN. LAWS ch. 94C, § 1 (2013). 95 See, e.g., Ross v. RagingWire Telecomm., Inc., 174 P.3d 200, 200 (Cal. 2008); Loder v. City

of Glendale, 927 P.2d 1200, 1200 (Cal. 1997). 96 See MASS. CONST. pt. 2, ch. 1, § 1, art. 1–3. 97 Cf. Moberly & Harsig, Smoke––and Mirrors?, supra note 42 (noting that "[m]ost states’

medical marijuana laws do not directly address the employment issues implicated by the use

of marijuana for medical purposes” and due to this, courts usually uphold an employer's right

to terminate otherwise behaved employees for violation of drug-free workplace policies). 98 Contra Ross, 174 P.3d at 209.


federal employees.99 The Massachusetts legislature must avoid this issue altogether by creating an exemption for employees permitted to use medical marijuana.100

A. Employers Need Guidance

Employers need guidance to know what they can and cannot do to current and future employees who are or will be using medical marijuana.101 The most influential argument employers utilize to restrict employees from using marijuana is that employers are responsible for all liability while employees are working.102 Employers also argue that employees with safety positions must be mentally and physically alert at all times103—marijuana slows both mental and physical reaction times.104 Most employers solve this problem by drug testing employees that fall within any category that would legally allow employers to do so.105

Under Massachusetts law, drug testing is only permissible based on a case-by-case analysis through a balancing test.106 The Massachusetts Supreme Judicial Court recognized that drug testing requires balancing the employer’s safety interest in having a drug-free work environment against the employee’s right to privacy.107 If all factors are met, then the employer’s right prevails and it can drug test the employees within those particular positions.108 Even if an employer is legally permitted to test an employee, studies show that just because the drug is traceable in an individual’s

99 See supra Part 0. 100 Cf. ARIZ. REV. STAT. ANN. § 36-2813 (2010) (West). 101 See supra notes 933–100 and accompanying text. 102 See Moberly & Hartsig, Smoke—and Mirrors?, supra note 42. 103 See id. 104 See Ross v. RagingWire Telecomms., Inc., 174 P.3d 200, 214 (Cal. 2008) (Kennard, J.,

concurring in part and dissenting in part) (“Considered strictly in terms of its physical effects

relevant to employee productivity and safety, and not its legal status, marijuana . . . may affect

cognitive functioning and have a potential for abuse.”); State v. Lucero, 85 P.3d 1059, 1063

(Ariz. Ct. App. 2004) (citing evidence that tetrahydrocannabinol (“THC”), the principal

chemical component of marijuana, “affects judgment, the ability to think, and the ability to

solve problems,” and “can make the ability to perform multiple tasks, such as those

preformed while driving, difficult”). 105 See, e.g., Webster v. Motorola, Inc., 637 N.E.2d 203, 204, 207–08 (Mass. 1994) (identifying

an employer that randomly tests its employees for drugs based on name selection). 106 See id. at 207. 107 Id. at 207–08. The factors to consider in this balancing test are: the nature of the

employee’s duties, the safety risk to the employer, the safety risk to the employee, and the

safety risk to the public. Id. 108 Id. at 208. Most positions that employers would be able to drug test are safety-sensitive,

such as positions that require the use of heavy machinery within a warehouse. See id.


system does not mean he or she is under the influence of the drug.109 In fact, marijuana can be detected in the bloodstream or urine for up to thirty days, well past the average two- to three-hour high experienced by most users.110 “Most employers are concerned about the effects of the use of marijuana and other illegal drugs on employees’ performance. But . . . a positive drug test can result in adverse consequences even if the employee is not under the influence or intoxicated by marijuana at work.”111

Employers should be permitted to reprimand employees who are clearly intoxicated by marijuana while at work.112 However, these employers should not be permitted to discriminate by terminating or refusing to hire someone just because that person uses or tests positive for medical marijuana.113 The Massachusetts legislature needs to clarify these issues for employers by implementing statutory protection for public and private employees permitted to use medical marijuana.114

B. Employees and Potential Employees Need Guidance

The Massachusetts legislature also needs to give guidance to its citizens and to public and private employees within the Commonwealth, in addition to employers.115 For an individual to follow laws in their jurisdiction, the laws must be easily understood and clearly defined.116 The current medical marijuana laws are not easily interpretable by ordinary citizens.117 Citizens using medical marijuana need guidance to know what jobs they can apply for before they subject themselves to an application process just to be turned away.118

109 See Stacy A. Hickox, Drug Testing of Medical Marijuana Users in the Workplace: An

Inaccurate Test of Impairment, 29 HOFSTRA LAB. & EMP. L.J. 273, 284, 299 (2012). 110 PAUL L. CARY, NAT’L DRUG CT. INST., DRUG COURT PRACTITIONER FACT SHEET: THE

MARIJUANA DETECTION WINDOW 1 (2006), available at

http://www.cffutures.org/files/A1_Handouts.pdf (“The duration of the urinary cannabinoid

detection window is not settled science. The number of days, following the cessation of

marijuana smoking, necessary for cannabinoids to become non-detectable using traditional

drug testing methods is the subject of debate among forensic toxicologists and a matter of on-

going scientific research.”); Drugs and Human Performance Fact Sheets: Cannabis/Marijuana,

NAT'L HIGHWAY TRAFFIC SAFETY ADMIN., http://www.nhtsa.gov/people/injury/research/

job185drugs/cannabis.htm (last visited Apr. 14, 2014). 111 Hickox, supra note 109, at 273–74. 112 See, e.g., ARIZ. REV. STAT. ANN. § 36-2813(B) (2013) (West). 113 See, e.g., id. 114 See infra Part 0. 115 See Bebinger, supra note 655. 116 See Paul D. Wilson, Recent Void for Vagueness Challenges to Zoning Ordinances: “How High

the Active Element of the Antenna Array?”, 44 URB. LAW. 589, 590–92 (2012). 117 See Bebinger, supra note 65. 118 See Moberly & Hartsig, Smoke—and Mirrors?, supra note 42 (discussing how the majority


Exempting current or potential employees who use medical marijuana from termination or rejection would have little significance to private employers.119 While the new medical marijuana law does not permit employers to look up individuals in the registration system to know if they are taking medical marijuana,120 employers are permitted to drug test potential employees during the hiring process.121 Once the employer tests the potential employee, the employer would know the individual is consuming marijuana and there would be grounds to deny employment.122 The current medical marijuana laws do not protect Massachusetts employees from being punished by their employer for using medical marijuana.123 This practice allows for unfettered discrimination by the employer, and all the risk lies with the potential employee who has merely exercised his right under these laws.124 In failing to provide guidance to those who are legally permitted—under Massachusetts law—to use medical marijuana but who are not intoxicated at the workplace, the Massachusetts legislature places all of the onus on the employee with little risk to the employer.125 To end this discrimination, as well as clarify the laws for current and potential employees, the Massachusetts legislature should amend the current medical marijuana statute to protect permitted medical marijuana use.126

V. The Massachusetts Legislature Should Amend the Current Marijuana Regulations to Include an Exception to Allow Employees with a Valid Medical Marijuana Registration Card to Use Medical Marijuana

Currently the Massachusetts medical marijuana law does not protect employees that use marijuana legally under State law.127 The Massachusetts legislature needs to enact an exemption for the protection of employees using medical marijuana.128 It also needs to define the term “intoxication” for the protection of the employers—to not fear terminating an individual

of states have failed to address employment issues implicated from medical marijuana use). 119 See, e.g., Hickox, supra note 109, at 273–74 (identifying how an employee testing positive

for marijuana would not accurately reflect whether that employee was able to still perform his

or her job duties). 120 See MASS. GEN. LAWS ch. 94C, § 1-15 (2013). 121 See LARSON ET AL., supra note 876. 122 See id. 123 See § 1-1. 124 See id. § 1-12. 125 See Bebinger, supra note 65. 126 See infra Part 0. 127 See § 1-1. 128 See infra Part 0.


due to an ambiguous law.129

A. Employee Exemptions for Medical Marijuana Use

Massachusetts should learn from other states’ mistakes and create an exemption from termination for employees using medical marijuana.130 California, for example, does not have an exemption for employees who use medical marijuana.131 Due to this, there have been a number of wrongful termination suits.132 In these suits, the employee argues he followed state law and should not have been terminated because he had used medical marijuana.133 The California Supreme Court determined that even though medical marijuana is legal in California, the statute does not protect employees from being terminated based on violating drug-free work policies.134 The court stated that if the California legislature intended to protect employees, it would have created an exemption—and it has not done so.135 This has created an unusable right for California employees because they will be terminated if they exercise the right to use marijuana.136 Massachusetts should learn from this and enact an exemption that protects employees.137

Arizona, on the other hand, does have an exemption for employees using medical marijuana.138 The exemption states:

Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either: (1) the person’s status as a cardholder. (2) A registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.139

Massachusetts should enact a similar exemption to protect employees

129 See infra Part 0. 130 See, e.g., Moberly & Hartsig, A Pot Hole For Employers?, supra note 2, at 448–55. 131 See, e.g., Ross v. RagingWire Telecomms., Inc., 174 P.3d 200, 208–09 (Cal. 2008) (citing

CAL. HEALTH & SAFETY CODE § 11362.1). 132 See, e.g., id. at 202–03 (demonstrating that employees are conducting lawsuits for

wrongful termination for using medical marijuana). 133 See, e.g., id. at 204. 134 Id. 135 See id. at 205–06. 136 See id. at 202–06. 137 See supra notes 130–36 and accompanying text. 138 ARIZ. REV. STAT. ANN. § 36-2813 (2010) (West). 139 Id.


within the state.140 The Arizona exemption takes most considerations into account—except the definition of “impaired.”141 The exemption clearly shows that if employers receive funding or licensing from the federal government, they do not have to abide by the state law.142 At the same time, the exemption accounts for an employer’s right to terminate an individual for attending work while intoxicated or impaired.143 The missing link from the exemption is protection for employers.144 The best and most efficient way to protect employers is to give them clear guidelines for when termination based on medical marijuana usage is permitted.145 The best way the Massachusetts legislature can give clear guidelines to employers is to define the terms “intoxication” or “impairment.”146

B. The Massachusetts Legislature Needs to Define “Intoxication” or “Impairment” to Protect Both Employers and Employees

The Massachusetts legislature should define “intoxication” to clarify for employers and employees when termination is permitted.147 Scholars stated that leaving “impaired” undefined will create a large amount of litigation within Arizona because employers will not know when it is appropriate to terminate an employee for medical marijuana use.148 A definition would also prevent employees from bringing specious claims against their former employer, which would create further backlog in the court systems.149 Scholars further stated that risk-adverse employers will merely not terminate employees using medical marijuana and accept paying the individual for doing poor work.150

To avoid this dilemma, the definition of “intoxication” (or “impaired” according to the Arizona medical marijuana statute) should be: diminished mental and physical ability to reasonably fulfill one’s job responsibilities as a result of the consumption of medical marijuana.151

This definition will first account for employees who are not subject to

140 Cf. id.; Moberly & Hartsig, A Pot Hole For Employers?, supra note 2, at 448–55. 141 See ARIZ. REV. STAT. ANN. § 36-2813. 142 Id. 143 Id. 144 See id. 145 See, e.g., Moberly & Hartsig, A Pot Hole For Employers?, supra note 2, at 443. 146 See, e.g., id. at 448–49 (examining the Arizona legislature’s attempt at defining

“impairment”). 147 See id. 148 See, e.g., id. at 447–49. 149 See id. at 446–49; see also Lawton M. Nuss, The Learned and Versatile Court, J. KAN. B.A.,

Jan. 2002, at 22, 26. 150 See Moberly & Hartsig, A Pot Hole For Employers?, supra note 2, at 442. 151 See, e.g., BLACK’S LAW DICTIONARY 898 (9th ed. 2009).


drug testing, such as all administrative jobs.152 If these individuals are attending work incapable of fulfilling their duties, their employers should be permitted to reprimand them.153 Employers are not only concerned with job safety but also productivity; therefore, if employers could terminate unproductive individuals, they would be able to protect their economic investment in the company.154

The only way to accurately know if an individual is impaired by marijuana is to observe the person and his or her work habits.155 If an individual’s work productivity steadily decreases after ingesting marijuana, then the employer may act and reprimand that individual.156 Termination should not be the first thought on an employers’ mind, however.157 The employer should treat medical marijuana effects just as any other decrease in productivity.158 First, there should be a warning or probationary process in which the individual is more closely watched and then, if the problem persists, the employer can make a later determination regarding the individual’s involvement with the company.159 If Massachusetts implements the exemption and defines “intoxication,” the law will equally protect employers and employees.160

The proposed “intoxication” definition also acknowledges that, for individuals currently subject to drug testing, these tests do not accurately reflect the impairment marijuana has on the human body.161 After ingestion, marijuana can stay in an individual’s system for weeks without actually having an effect on the individual beyond the first few hours of contact.162 For individuals subject to drug testing, employers merely have proof of marijuana use, but not that the individual was under the influence of marijuana while at work.163 With the proposed exemption, the employer will have no recourse for individuals with positive results who are actually a danger.164

If an individual is a danger in the workplace, the employer should be

152 See Webster v. Motorola, Inc., 637 N.E.2d 203, 205, 208 (Mass. 1994). 153 See Moberly & Hartsig, Smoke—and Mirrors?, supra note 42, at 30–31. 154 See, e.g., id. 155 Hickox, supra note 109, at 313–14. 156 See Moberly & Hartsig, Smoke—and Mirrors?, supra note 42, at 30–31. 157 See, e.g., LARSON ET AL., supra note 86; Hickox, supra note 109, at 312–14. 158 See Hickox, supra note 109, at 312–14. 159 See id. 160 See Moberly & Hartsig, Smoke—and Mirrors?, supra note 42, at 30–31. 161 See Hickox, supra note 109, at 283–84. 162 Id. at 287–89, 300–01. 163 Id. at 300. 164 See, e.g., ARIZ. REV. STAT. ANN. § 36-2813 (2010) (West).


able to take immediate action.165 Without defining “intoxication,” employers could potentially second-guess their legal rights and leave the individual to endanger him or herself, as well as others.166 This will create significant liability issues for the employer and should not be permitted.167 If an individual is within a safety position and noticeably intoxicated while at work, the employer should first remove the individual from that safety position.168 Then the employer should take the same steps for any other unproductive employee.169 If Massachusetts enacts this definition of intoxication, employees will know their termination rights and understand when termination is warranted.170

CONCLUSION

Massachusetts has clearly started down the right path in its medical marijuana journey, but it has more to learn from states that enacted medical marijuana laws before it. Massachusetts should learn from Arizona and create an exemption for employees using medical marijuana. Massachusetts should take what Arizona has done so far and expand upon it by creating a definition of “intoxication” within the exemption. If Massachusetts does so, both employers and employees will have equal protection under the law, which is what the law should strive for—equality.

165 See Moberly & Hartsig, Smoke—and Mirrors?, supra note 42, at 30–31. 166 See id. 167 See id. at 31. 168 Id. 169 See supra Part V.B. 170 See id.

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Kennedy: Sifting Through the Weed

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