There is so much confusion in the medical cannabis world about so many aspects of medical patients’ rights in legal cannabis states. This is due entirely to the fact that cannabis is still federally illegal and Federal law always supercedes State laws. In this article I will explain the Maryland law about medical cannabis usage and how it affects the workplace.
Maryland Medical Cannabis Laws
A qualifying patient in Maryland is defined as an individual who has at least one of the qualifying medical conditions specified by the Maryland Medical Cannabis Commission (the Commission.) A prospective patient must receive a written certification by a certifying provider with whom the patient has a bona fide patient-physician relationship. The certifying provider, in specified fields of practice, must be registered and licensed by the Commission. The written certification is NOT a prescription. It attests that the patient meets the requirements for medical cannabis usage and the potential benefits from its usage “would likely outweigh the health risks.”
The patient is required to register with the Commission and obtain an identification medical cannabis card. A patient can possess up to a 30-day supply or 120 grams of flower unless given a special dispensation for a bigger supply.
As long as the patient complies with the law, they are protected from “arrest, prosecution, or any civil or administrative penalty.” However, and this is the big however, such protection has no impact whatsoever on federal law.
Every federal court that has been tasked with addressing the issue of workplace accommodation has upheld the principle that cannabis, considered an intoxicant, is not a protected substance, even by the Americans with Disabilities Act (ADA). In fact, cannabis in any form, even medical cannabis, is considered an “illegal drug” even under the ADA. This conclusion has been upheld by the Maryland Fair Employment Practices Act (MFEPA) and no Maryland agency or court has ever overturned it.
The Position of Maryland Employers on Medical Cannabis Usage
Can you be terminated in Maryland by your employer for using medical cannabis? The short answer is Yes. But that depends entirely on your employer, so we are back to that gray area that always exists in the current cannabis world. With Federal law superceding State law, no employer is required to accommodate an employee’s medical cannabis usage for any reason. The law says that cannabis usage or possession of the drug is cause for disciplinary action which may include immediate termination. If you test positive for medical cannabis, it is up to the discretion of the employer whether or not to terminate you. However, this does not mean that your employer will automatically fire you. An employee cannot be terminated simply for possessing a medical cannabis card.
Some employers have no problem with it as long as the medical cannabis usage does not affect the quality, productivity and safety of the employees’ work. The tolerance for medical cannabis usage often depends on the industry. Industries where there are safety concerns such as the transportation industry where medical cannabis usage can impact driving performance are unlikely to allow it. Any job that requires the use of heavy machinery such as operating a jack hammer or driving a fork lift would most likely not allow the use of medical cannabis. Another example is the construction industry where employees are on potentially dangerous construction sites.
Medical Cannabis Usage During Non-Workplace Hours
The same law applies to any employee who uses cannabis outside of the workplace and fails a drug test. This appears to contradict the Maryland law that states that a qualifying patient may not be denied any right or privilege due to medical cannabis usage as long as they otherwise comply with the law. Maryland law upholds the right of an employer to test for use of cannabis for any reason. The law also gives an employer the right to take action against an employee who tests positive for use of cannabis for any reason.
There are many gray areas and here are just 3 possible scenarios which create headaches, so to speak, for employers:
Scenario #1:
An employee requests the use of medical cannabis outside of the workplace to treat a medical condition. The ADA may not consider this accommodation a reasonable one. But, it is recommended that the employer consider the request by entering into negotiation with the employee per the ADA and the MFEPA. In addition, it is possible for the employee to ask for a leave of absence to treat their medical condition under the Family and Medical Leave Act.
Scenario #2:
An employer discovers through social media that two employees use medical cannabis outside of the workplace. If only one employee is terminated while the other is not, this sets up a potential case of discrimination against the employer, especially if the employees are of different races or genders.
Scenario #3:
An employer discovers that an employer occasionally uses cannabis outside of the workplace as part of a religious practice or ritual. This may be grounds for drug testing. However, if the employee is terminated as the result of a positive test, there is justification for a charge of religious discrimination.
There does seem to be a nationwide trend for companies to forego cannabis testing. There is a growing realization by many employers that disqualifying prospective employees solely based on their status as medical cannabis card holders greatly diminishes the pool of potentially highly qualified workers. Let’s hope that trend continues so that employee testing is the exception rather than the norm.
Sources:
jdsupra, com, Still Smoking: Medical Marijuana in Maryland and What You Should Know, Zachary Busey, March 22, 2019
kannavis.org, Workplace Cannabis in Maryland: What You Need To Know About Medical Marijuana At Work, Admin, Aug. 20, 2019