Articles

The Intersection of Medical Marijuana and Disability Laws in Maryland

In 2014, Governor O'Malley signed into law Senate Bill 923, which laid the foundation for the legal distribution of “medical marijuana” in Maryland. The statutory framework permits distribution of marijuana by licensed dispensaries for certain medical purposes as prescribed by “certifying providers” to “qualifying patients.”  Legislation enacted in the previous session had established the Natalie M. LaPrade Maryland Medical Marijuana Commission,¹ whose purpose was to establish and oversee the “investigational” use of marijuana for medical purposes by academic medical centers. The 2014 law expanded the medical marijuana program beyond the investigational stage, and permitted the use of marijuana for the treatment of certain medical conditions.²  Consistent with that expansion, the 2014 law broadened the Commission's duties to include the licensure of medical marijuana growers and dispensaries.  

As of this writing, the Commission's preparatory work is, reportedly, nearly complete.  The Commission licensed the first dispensary in June 2017, patients have been qualified, and the Commission anticipates that legal dispensation of medical marijuana will begin within the next few months.  That means that some portion of the Maryland work force will be using marijuana in a manner that is authorized under Maryland law -- and submitting positive urine samples as a result.  

Many employers currently maintain policies that prohibit the use of marijuana altogether, such that a positive urine sample would constitute grounds for termination or some other adverse action. The focus of this article is to examine the employer's rights and obligations under Maryland's employment discrimination statute (MD. CODE. STATE GOVT. §20-606), arising from an employee's legal use of marijuana under Maryland's medical marijuana program. 

MARYLAND'S MEDICAL MARIJUANA LAW

Maryland's medical marijuana law provides for use of marijuana by a “qualifying patient” prescribed by a “certifying provider.”  MD. CODE HEALTH GEN. ART. §13-3301(c),(m).  The law requires physicians who seek registration as “certifying providers” to submit to the Commission a proposal that includes the reasons for prescribing marijuana to a particular patient, including the patient's “qualifying medical conditions.”  HEATH GEN. §13-3304.  This term (“qualifying medical conditions”) is nowhere defined in the statute or the corresponding regulations.  However, the statute “encourages” the Commission to approve provider applications for chronic or debilitating disease(s) or medical condition(s) that result in a patient being admitted into hospice or receiving palliative care, or for a chronic or debilitating disease or medical condition (or the treatment of such disease or condition) that produces cachexia, anorexia, wasting syndrome, severe or chronic pain, severe nausea, seizures, and/or severe or persistent muscle spasms.  HEALTH GEN. §13-3304(d).  The preceding list of conditions is not exclusive; according to the statute, “[t]he Commission may approve applications that include any other condition that is severe and for which other medical treatments have been ineffective if the symptoms reasonably can be expected to be relieved by the medical use of cannabis.” HEALTH GEN. §13-3304(e).  The Commission's regulations are reflective of the language of the statute in this regard, and encourage would-be certifying physicians to apply to the Commission for registration to treat patients with the same diseases and conditions set forth in the statute, adding to the list glaucoma and post-traumatic stress disorder.  COMAR 10.62.03.01 (B).  

A “qualifying patient” is one who has been provided with a written certification by a certifying provider “in accordance with a bona fide provider-patient relationship.” §13-3301 (m).³  A written certification shall include:

1. Physician's name, Maryland Board of Physicians license number, and office telephone number; 
2. Qualifying patient's name, date of birth, address, and county of residence; 
3. Medical condition requiring medical cannabis; and 
4. The date of qualification as a qualifying patient. 

COMAR 10.62.05.01 (C).  Qualifying patients must apply to the Commission for an identification card identifying them as such.  COMAR 10.62.06.01.⁴

The law exempts qualifying patients, licensed growers, certifying providers, caregivers and dispensaries and their agents from “arrest, prosecution, or any civil or administrative penalty, including a civil penalty or disciplinary action by a professional licensing board” for the use of cannabis as permitted by the statute and regulations. § 13-3313(a).  Moreover, the statute instructs that such persons “may not be . . . denied any right or privilege [] for the medical use of cannabis.” HEALTH GEN. § 13-3313(a).  

MARYLAND DISABILITY DISCRIMINATION LAW

The Maryland Fair Employment Practices Act (FEPA), which covers employers with fifteen or more employees, prohibits discrimination in employment based on a physical or mental disability, as long as the individual can perform the job (or a reassignment position)⁵ with or without an accommodation.  MD. CODE STATE GOV. ART. §20-602, et seq.  Under the law, an employer may not discriminate based on any term or condition of employment against an individual with a “disability unrelated in nature and extent so as to reasonable preclude the performance of the employment . . .” STATE GOV. §20-606.  

The Maryland statute defines a disability broadly:

1. A physical disability, infirmity, malformation, or disfigurement that is caused by bodily injury, birth defect, or illness, including epilepsy; or
2. A mental impairment or deficiency.

STATE GOV. §20-601. The Code of Maryland Regulations defines “disability” as  “a physical or mental impairment, . . . that is caused by bodily injury, birth defect, or illness, which substantially limits one or more of an individual's major life activities.”  COMAR 14.03.02.02 (B)(6).⁶  “Major life activities” include, but are not limited to functions such as caring for oneself, performing manual tasks, . . ., learning, working, driving a vehicle, socializing, and engaging in procreation and recreation.”  COMAR 14.03.02.02 (7). A “physical or mental impairment” under the FEPA is defined at COMAR 14.03.02.02 (9) to include

(a) A physiological disorder or condition, cosmetic disfigurement, or anatomical loss, affecting one or more of the following bodily systems:  (i) neurological; (ii) musculoskeletal; . . . (vii) digestive; (viii) genitourinary; (ix) hemic and lymphatic; or (x) skin and endocrine; or 

(b) A mental or psychological disorder such as . . . organic brain syndrome, emotional or mental illness, . . . 

An employer is required to make a reasonable accommodation for a known disability of an otherwise qualified individual, if doing so would not cause an undue hardship to the employer's business.  HEALTH GEN. §20-606, 603. Determining the appropriate reasonable accommodation requires the employer to perform an “individualized assessment” of the employee and her disability.  Peninsula Regional Med. Ctr. v. Adkins, 448 Md. 197, 212 (2016).

MEDICAL MARIJUANA AS AN ACCOMMODATION FOR A “DISABILITY”

There is little question that the types of diseases and conditions for which medical marijuana is authorized as treatment could fall within the preceding definitions of “disability.” What then is an employer with an anti-marijuana use policy to do if an employee, who is a “qualifying patient” using marijuana in a manner consistent with the statutory and regulatory framework to treat a “disability,” admits to or provides other evidence of marijuana use (e.g., through submission of a positive urine sample)?  Should the fact that the employee's use of marijuana is sanctioned by state law give the employer pause before disciplining or firing that employee?  Is not the legal, off-duty use of marijuana a reasonable accommodation that the employer can make, any anti-marijuana policy notwithstanding?   Neither the legislature nor the courts of Maryland have directly addressed this question.  

A VARIED APPROACH BY OTHER STATES

Although many states have enacted medical marijuana laws, they have not been uniform in their views on this discrete issue. Some state legislatures have addressed the disability discrimination issue explicitly, by enacting statutory provisions specifically prohibiting employers from discriminating against medical marijuana users on the basis of their legal use.  See, e.g., Delaware Code §4905A (a)(3);⁷  New York Consolidated Laws, Public Health §3369 (2);⁸  Pennsylvania, 35 P.S. §10231.2103 (b).⁹

In situations where the state statutes do not contain such specific provisions, and where courts have had to make the determination, they have been less accommodating.  Of the thirty states that have instituted medical marijuana programs, at five have judicially rejected disability discrimination claims arising from discipline or termination of employees using state-sanctioned medical marijuana.¹⁰  The courts' rejections have largely been based upon the fact that use of marijuana is still illegal under federal law.  For example, in one of the most recent decisions, the appellate court in Colorado reasoned that a marijuana smoking employee was not protected by the Colorado statute, which protected against discrimination against employees for “engaging in any lawful activity off the premises of the employer during nonworking hours.”  It was pivotal to the court that use of marijuana was prohibited under federal law:

. . . because activities conducted in Colorado, including medical marijuana use, are subject to both state and federal law, see, e.g., Raich, 545 U.S. at 29  (federal Controlled Substances Act applies to state activities including marijuana use), for an activity to be "lawful" in Colorado, it must be permitted by, and not contrary to, both state and federal law. Conversely, an activity that violates federal law but complies with state law cannot be "lawful" under the ordinary meaning of that term.

Coats v. Dish Network, 303 P.3d 147, 150-151 (Colo. App. 2013) (citing Gonzales v. Raich, 545 U.S. 1 (2005)), aff'd 2015 Co. 44 (Colo. 2015).   The statue contained no exception for the use of medical marijuana, and thus, the court wrote:

. . . forbidding a Colorado employer from terminating an employee for federally prohibited off-the-job activity is of sufficient policy import that we cannot infer, from plain statutory language to the contrary and silence in the legislative discussions, the legislative intent to do just that.

Coats, 303 P.3d at 151.  The Supreme Court of California, seven years prior, offered a similar approach to the absence of specific statutory language concerning employment:

Plaintiff's position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug. But the act's effect is not so broad. No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law (21 U.S.C. §§ 812, 844(a)), even for medical users [California citations omitted]. Instead of attempting the impossible, . . . , California's voters merely exempted medical users and their primary caregivers from criminal liability under two specifically designated state statutes. Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees.

Ross v. RagingWire Telecommunications, 174 P.3d 200, 204 (Cal. 2008). See also Emerald Steel Fabricators v. Bureau of Labor & Industry, 230 P.3d 518 (Oregon 2010); Roe v. TeleTech, 257 P.3d 586 (Wash. 2011). 

Not all courts share this view. Recently, the Supreme Court of Massachusetts, interpreting statutory language very similar to the Maryland statue's, took a very different approach.  In Barbuto v. Advantage Sales and Marketing, LLC, 78 N.E. 3d 37, 477 Mass. 456 (Mass. 2017), the employer argued that, because marijuana use was a federal offense, allowing an administrative employee's use of medical marijuana was per se unreasonable as an accommodation (defendant cited the Ross decision in support of this argument). It further argued that, because marijuana use was facially unreasonable as an accommodation, the employer had no obligation to engage in the “interactive process” to identify some reasonable accommodation before terminating her employment.    

Reversing the lower court's dismissal of the handicap discrimination claim, the court rejected these arguments, explaining that the passage of the Massachusetts medical marijuana law made use and possession of medically prescribed marijuana “as lawful as the use and possession of any other prescribed medication.” That possession of medical marijuana was in violation of federal law did not make it per se unreasonable as an accommodation, because, the court reasoned, the only person at risk of federal prosecution for that use was the plaintiff / employee herself.  In that regard, the court discussed the overarching policy differences between the states' and the federal government's approaches to marijuana:

To declare an accommodation for medical marijuana to be per se unreasonable out of respect for Federal law would not be respectful of the recognition of Massachusetts voters, shared by the legislatures or voters in the  vast majority of States, that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions.

The Barbuto court's decision was also based in part upon language in the Massachusetts statute that reflects that of the Maryland statute: “any person meeting the requirements under this law shall not be penalized under Massachusetts law in any manner, or denied any right or privilege, for such actions.” MASS GEN. LAWS Ch. 94C, Appx. 4.  In somewhat circular fashion, the court explained that a handicapped employee in Massachusetts has a statutory right or privilege to reasonable accommodation, and “if an employer's tolerance of an employee's use of marijuana were a facially unreasonable accommodation,” the employee would be effectively denied that right or privilege.  Barbuto, 477 Mass. at 464. Moreover, even if the use of medical marijuana had been per se unreasonable, the employer owed the plaintiff an obligation under the disability discrimination laws to participate in the interactive process “to explore with her whether there was an alternative, equally effective medication she could use that was not prohibited by the employer's drug policy.” Barbuto, 477 Mass. at 466. 

The court in Barbuto was careful to note that, in reversing the trial court, it was not foreclosing the employer's ability to defend on the basis that the accommodation constituted an undue hardship.  By way of example, the court recognized situations in which an employee's marijuana use would “violate an employer's contractual or statutory obligation . . . jeopardiz[ing] its ability to perform its business,” or where the employer was under a federal contract subject to the Drug Free Workplace Act.  Barbuto, 477 Mass. 467 – 68.¹¹

ANALYSIS

The absence of a clear statutory directive on this issue in the Maryland medical marijuana law will likely be considered by the courts to be an indicator that Maryland did not intend to extend disability discrimination protection to medical marijuana users.  There have been medical marijuana laws on the books of many states for several years – some with and some without specific anti-discrimination provisions.  There has been ample time to consider the ramifications of the omission of such provisions.  And although Maryland voters may have concluded that the medical therapeutic use of marijuana is acceptable, the federal government has not done so.  Maryland's proximity, geographically and economically, to the federal government, would place a large number of Maryland private employers in a difficult position if they were to permit the use of marijuana by employees.  But the matter will at some point be litigated in Maryland courts, which will have to weigh the federal prohibition of marijuana use against the recognition by the voters of Maryland that marijuana can be a valuable therapy for suffering people.

---

^{1. The name of the Commission was changed to the Natalie M. LaPrade Maryland Medical Cannabis Commission during the 2015 legislative session.}

^{2. According to the Department of Legislative Services' Fiscal and Policy Note concerning HB 490, by which the medical marijuana law was amended in 2015, the 2014 expansion was due to lack of interest from academic medical facilities and pressure from medical marijuana advocates.}

^{3. Patients under the age of 18 must have a “caregiver,” which is defined as a person who has agreed to assist with a qualifying patient's use of medical cannabis and, a parent or legal guardian.  §13-3301(b),(m).}

^{4. The regulation provides inter alia, that} 

^{A. A qualifying patient may apply to the Commission for an identification card as part of the qualifying process by logging onto the Commission website and submitting:}

1. ^{The completed application form as provided by the Commission;}
2. ^{A current, clear photograph of the applicant's face taken within 6 months of application;}
3. ^{A copy of the qualifying patient's government identification card or other proof of identity; and}
4. ^{The required fee as specified in COMAR 10.62.35.}

^{C. A qualifying patient in hospice care is exempt from obtaining an identification card.}  

^{HEALTH GEN. §13-3302(d) requires the Commission to develop identification cards for qualifying patients and caregivers. Thus, although the regulation uses the permissive “may,” it is clear from the context that the identification card is required, and that the use of the word “may” references the availability of the Commission's website as an optional method of obtaining the card.}  

^{5. Peninsula Regional Med. Ctr. v. Adkins, 448 Md. 197, 217 (2016).}  

^{6. The Court of Appeals in Adkins relied in part upon the Commission on Human Relations' anti-disability-discrimination regulations in an action brought under the FEPA.}

^{7. “Unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations, an employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon either of the following:}

^{a. The person's status as a cardholder; or
b. 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.”}

^{8. “Non-discrimination. Being a certified patient shall be deemed to be having a "disability" under article fifteen of the executive law (human rights law), section forty-c of the civil rights law, sections 240.00, 485.00, and 485.05 of the penal law, and section 200.50 of the criminal procedure law. This subdivision shall not bar the enforcement of a policy prohibiting an employee from performing his or her employment duties while impaired by a controlled substance. This subdivision shall not require any person or entity to do any act that would put the person or entity in violation of federal law or cause it to lose a federal contract or funding.”}

^{“(b) Employment. --}

1. ^{No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee's compensation, terms, conditions, location or privileges solely on the basis of such employee's status as an individual who is certified to use medical marijuana.}
2. ^{Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. This act shall in no way limit an employer's ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee's conduct falls below the standard of care normally accepted for that position.}
3. ^{Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of Federal law.”}

^{10. California [Ross v. RagingWire Telecommunications, 174 P.3d 200 (Cal. 2008)]; Oregon [Emerald Steel Fabricators v. Bureau of Labor & Industry, 230 P.3d 518 (Oregon 2010)]; Colorado [Coats v. Dish Network, 303 P.3d 147 (Colo. App. 2013), affd 2015 Co. 44 (2015)]; Washington State [Roe v. TeleTech, 257 P.3d 586 (Wash. 2011)].}

^{11. Interestingly, the Barbuto court compared the language of the Massachusetts statute with that of several other states, whose laws include the sorts of specific anti-discrimination provisions discussed above.  Noting that it the Massachusetts medical marijuana law was silent in this regard, it concluded that the medical marijuana statute did not create a private right of action.}