97

Sifting Through the Weed: Why

Employers and Employees Need
Guidance on Massachusetts Medical
Marijuana Laws

NOTE
CRYSTAL KENNEDY
*

ABSTRACT
Relatively recently, marijuanas 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 Ne w Engl and Law Revi e w 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 Arizonas 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 115 (2004) (discussing the political history of marijuana from the
founding fathers to George W. Bushs presidency); DAVID F. MUSTO, THE AMERICAN DISEASE:
ORIGINS OF NARCOTIC CONTROL 21029 (3d ed. 1999) (describing the history of marijuana from
the late 1800s to the 1930s).
2
See GERBER, supra note 1, at 24; Michael D. Moberly & Charitie L. Hartsig, The Arizona
Medical Marijuana Act: A Pot Hole for Employers?, 5 PHX. L. REV. 415, 42021 (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 12 (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 43839 (discussing the
effects of Arizonas 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 i ng Thr ough t he We ed 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 ones 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., BLACKS 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.
100 Ne w Engl and Law Revi e w On Remand v. 48 | 97
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 marijuanain compliance with California state
lawchallenged Congresss 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 governments 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 Clintons administration, the
Executive Branch even allowed for a small amount of individuals suffering
from cancer, including Vice President Gores 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 78.
20
See id. at 1720; Wickard v. Filburn, 317 U.S. 111, 125, 12829 (1942).
21
See Mikos, supra note 17, at 1439 n.73.
22
See generally GERBER, supra note 1, at 1760 (discussing the different approaches each
presidentfrom Nixon to George W. Bushtook 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, 67475 (2010) (President Clinton . . . called for drug policy reform that
favored treatment over enforcement.).
2014] Si f t i ng Thr ough t he We ed 101
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 Obamas inauguration, he stated his belief that medical
marijuana should be left to the states to regulate.
27
He vowed, Im 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 Clintonraiding approximately 100
dispensaries within Obamas first three years in office.
29
All of the raided
dispensaries complied with state laws.
30
While the federal governments
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, Obamas 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 67475.
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 Employers Discharge of or Failure to Hire Employee Due to
Employees 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.
102 Ne w Engl and Law Revi e w On Remand v. 48 | 97
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 nonprofitfrom
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. Arizonas 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, 122223 (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, Smokeand Mirrors? Employers and the
Arizona Medical Marijuana Act, ARIZONA ATTORNEY 30, 30 (JulyAug. 2011) [hereinafter
Moberly & Hartsig, Smokeand 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, Smokeand Mirrors?, supra note 42.
45
See ARIZ. REV. STAT. ANN. 36-2804.03(B).
2014] Si f t i ng Thr ough t he We ed 103
Arizona Act also allows certain individuals to grow their own cannabis
plants.
46

Unlike most states, Arizonas 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 States
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. Massachusettss Interpretation of Medical Marijuana
In the 2012 election, Massachusetts voters considered the question of

46
Id. 36-2801(1)(b)(ii); Moberly & Hartsig, Smokeand Mirrors?, supra note 42.
47
ARIZ. REV. STAT. ANN. 36-2813; Moberly & Hartsig, Smokeand Mirrors?, supra note 42.
48
ARIZ. REV. STAT. ANN. 36-2813(B)(1); see also Moberly & Hartsig, Smokeand Mirrors?,
supra note 42.
49
Moberly & Hartsig, Smokeand 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 premisesthe 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 employees 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. DEPT OF TRANSP.
(Oct. 22, 2009),
http://www.dot.gov/sites/dot.dev/files/docs/ODAPC_medicalmarijuananotice_0.pdf; see also
Moberly & Hartsig, Smokeand Mirrors?, supra note 42, at 31.
54
See Golden Eagle Distribs., Inc. v. Ariz. Dept 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, Smokeand Mirrors?, supra note 42.
104 Ne w Engl and Law Revi e w On Remand v. 48 | 97
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' rightstherefore, 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 requirementscovering everything from who is
permitted to distribute marijuana to how to obtain a medical marijuana
registration cardand 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, SECY 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. DEPT OF PUB.
HEALTH, http://www.mass.gov/eohhs/docs/dph/quality/drugcontrol/medical-marijuana/
medical- marijuana-faq.pdf (last visited Jun. 5, 2014) [hereinafter DEPT 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.
2014] Si f t i ng Thr ough t he We ed 105
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
Congressfor 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
ones 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; DEPT 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 6162.
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, Smokeand Mirrors?, supra note 42.
75
See infra Part 0.
106 Ne w Engl and Law Revi e w On Remand v. 48 | 97
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 process
87
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 7785 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., DEPT 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 Secy for Policy, Drug-Free
Workplace Advisor, U.S. DEPT 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 60085, THE ARMY SUBSTANCE ABUSE
PROGRAM 2 (Dec. 28, 2012), available at http://www.apd.army.mil/pdffiles/r600_85.pdf.
2014] Si f t i ng Thr ough t he We ed 107
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. DEPT 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. 13.
97
Cf. Moberly & Harsig, Smokeand 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.
108 Ne w Engl and Law Revi e w On Remand v. 48 | 97
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 times
103
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
employers safety interest in having a drug-free work environment against
the employees right to privacy.
107
If all factors are met, then the employers
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 individuals

99
See supra Part 0.
100
Cf. ARIZ. REV. STAT. ANN. 36-2813 (2010) (West).
101
See supra notes 933100 and accompanying text.
102
See Moberly & Hartsig, Smokeand 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, 20708 (Mass. 1994) (identifying
an employer that randomly tests its employees for drugs based on name selection).
106
See id. at 207.
107
Id. at 20708. The factors to consider in this balancing test are: the nature of the
employees 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.
2014] Si f t i ng Thr ough t he We ed 109
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, NATL 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 27374.
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, 59092 (2012).
117
See Bebinger, supra note 65.
118
See Moberly & Hartsig, Smokeand Mirrors?, supra note 42 (discussing how the majority
110 Ne w Engl and Law Revi e w On Remand v. 48 | 97
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 permittedunder Massachusetts lawto 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 employersto 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 27374 (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.
2014] Si f t i ng Thr ough t he We ed 111
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 exemptionand 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 persons status as a cardholder. (2) A registered qualifying
patients 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 44855.
131
See, e.g., Ross v. RagingWire Telecomms., Inc., 174 P.3d 200, 20809 (Cal. 2008) (citing
CAL. HEALTH & SAFETY CODE 11362.1).
132
See, e.g., id. at 20203 (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 20506.
136
See id. at 20206.
137
See supra notes 13036 and accompanying text.
138
ARIZ. REV. STAT. ANN. 36-2813 (2010) (West).
139
Id.
112 Ne w Engl and Law Revi e w On Remand v. 48 | 97
within the state.
140
The Arizona exemption takes most considerations into
accountexcept 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 employers 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 ones 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 44855.
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 44849 (examining the Arizona legislatures attempt at defining
impairment).
147
See id.
148
See, e.g., id. at 44749.
149
See id. at 44649; 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., BLACKS LAW DICTIONARY 898 (9th ed. 2009).
2014] Si f t i ng Thr ough t he We ed 113
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
individuals 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 individuals 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 individuals 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, Smokeand Mirrors?, supra note 42, at 3031.
154
See, e.g., id.
155
Hickox, supra note 109, at 31314.
156
See Moberly & Hartsig, Smokeand Mirrors?, supra note 42, at 3031.
157
See, e.g., LARSON ET AL., supra note 86; Hickox, supra note 109, at 31214.
158
See Hickox, supra note 109, at 31214.
159
See id.
160
See Moberly & Hartsig, Smokeand Mirrors?, supra note 42, at 3031.
161
See Hickox, supra note 109, at 28384.
162
Id. at 28789, 30001.
163
Id. at 300.
164
See, e.g., ARIZ. REV. STAT. ANN. 36-2813 (2010) (West).
114 Ne w Engl and Law Revi e w On Remand v. 48 | 97
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, Smokeand Mirrors?, supra note 42, at 3031.
166
See id.
167
See id. at 31.
168
Id.
169
See supra Part V.B.
170
See id.