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December 7, 2015

The policy haze surrounding medical marijuana

There’s something funky in the air, and it isn’t the smell of medical marijuana in Massachusetts.

In fact, while medical marijuana has been part of the Massachusetts landscape since a ballot vote passed in 2012, thanks to slow implementation, there are still fewer than 14,000 active patients and only three dispensaries authorized to distribute in the Commonwealth.

The funk is the confusion and uncertainty surrounding policies businesses should and can have in place when it comes to marijuana and employees. A pending Foxborough lawsuit has called into question whether employers can ban workers from using medical marijuana when they are not on the clock, and an impending 2016 ballot initiative could lead to the legalization of recreational marijuana, meaning the issue could spread rapidly to the Central Massachusetts business community very quickly.

One issue that remains clear is that Massachusetts businesses have the right to a workplace free of employee intoxication of any kind. The same rules that would apply to alcohol as well as controlled substances apply to medical marijuana use within the workplace. Simply put: there is nothing within the state’s medical marijuana law that restricts these rights of employers, said Scott Zoback spokesperson for the state Department of Health.

“Employers are able to make sure employees are fit for duty and not impaired,” he said. “Nothing in state law prohibits an employer from implementing a policy requiring employees to be fit for duty and free of any impairments.”

Not only can employers make policies prohibiting the use of marijuana in the workplace, medical or otherwise – said David Felper, the chair for the labor, employment and higher education practice area for Worcester law firm Bowditch and Dewey law firm – this is something that employers should be doing.

Otherwise they open themselves up to liability if they potentially have an impaired workforce, Felper said. Part of this backing comes from the fact that marijuana is still illegal at the federal level, with that law superseding any state or local laws to the contrary.

Where things start to get unclear is whether an employee has the protection to use medical marijuana on their own time, rendering them not impaired at work but still testing positive on a drug screening.

Cristina Barbuto was fired from her job last year after her first day at Advantage Sales & Marketing in Foxborough when she reportedly failed a drug test. The lawsuit that followed from Barbuto, who says she has Crohn’s disease and a doctor’s certificate for medical marijuana, will be a precedent-setting case, Felper said.

Although he expects a general prohibition against drugs by a company to be upheld, “until we get a definitive position there is some risk involved” for employers when it comes to complete prohibition of medical marijuana.

Unfortunately, this leaves employees who are authorized for medical marijuana between a rock and a hard place, said Nichole Snow, executive director for the Massachusetts Patient Advocacy Alliance. While they might want to be up front and tell their employers about their medical marijuana status, if that conflicts with the policy at work, then they are not protected.

“Patients have their cards, and they think they are protected, but they are not,” Snow said. “Employers all over the place are taking different approaches.”

Lack of protection is unfortunate, said Snow, as for many patients marijuana is a last-ditch effort, or used to avoid medications with debilitating side-effects. Snow supported House Bill 2065 this year that have would built in protections for employees, but the bill did not gain traction in the state legislature.

“It’s an alternative treatment, and it’s fairly new, but it’s life-saving,” said Snow. “We don’t do this with any other medicine … we need to reduce the stigma as much as possible.”

Businesses can choose

It is incredibly important for businesses to make their decision about how they are going to handle marijuana and communicate it clearly to their employees, said Stacey Scalf, a human resources business partner for Cordant Health Solutions, which has locations in Worcester, along with Washington, Colorado and Arizona. Scalf has worked out of the company’s Washington office for nine years and seen the ongoing policy transformation spurred by medical (in 1998) and then in recreational (in 2012) marijuana.

“It was just a gut-check moment of everyone deciding where we are going to be, what our company’s stance is going to be and to design it,” Scalf said.

In Washington state, Scalf has since seen businesses range from having strict marijuana policies that include testing to those that are “420 friendly.” It is up to the business to decide this piece of their corporate identity and which direction they want to go in, she said, but they still need to put in protections for themselves.

“We have some 420-friendly companies here in Washington state. They are supportive of marijuana, but their policies are going to still say you can’t be impaired at work, and that is a protection for the company,” she said.

One scenario in which employers do not have this choice is any company with federal contracts, Scalf said. In those cases it is clear cut that the companies must abide by federal law, which places any marijuana firmly in the illegal category. When it comes to companies whose employees work in potentially dangerous situations or handle important data such as testing crime scene evidence, the use of marijuana is going to be very scrutinized.

“The greater the risk associated with the influence of drugs or alcohol well at work, the greater the likelihood testing is going to be upheld,” Felper said.

Although the medical marijuana program in Massachusetts is small, an ever-expanding network for medical marijuana and a ballot initiative that will put the question of recreational legalization to a vote in 2016 are set to accelerate the issue. Now is the time to establish guidelines for the company, while there is time to discuss it and establish policies in line with the company’s corporate culture, Scalf said.

“You have to have your ducks in a row, and that would be the advice from states that have already done it. Figure out your policy,” Scalf said. “Define it and be ready for it, so you are protected as a company.

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