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High Stakes

NETA’s Leslie Laurie (left), regional director for Western Mass. and director of patient services, and Angela Cheek, dispensary manager.

NETA’s Leslie Laurie (left), regional director for Western Mass. and director of patient services, and Angela Cheek, dispensary manager.

It’s been an eventful six years since voters first approved marijuana sales to treat medical conditions back in 2012. From that vote sprang New England Treatment Access (NETA) three years ago, and last month, the dispensary became one of just two stores in Massachusetts selling cannabis products for adult recreational use as well. NETA’s co-founder says the company has proven itself to be a good neighbor and an economic driver — and promises to be even more so in what is certainly a bold new era for marijuana in the Bay State.

When Kevin Fisher came to Massachusetts to help launch a medical-marijuana dispensary, he was already a veteran of the industry in Colorado, with plenty of passion to boot.

Fisher’s family, like so many others, has been struck by cancer, he said, and the idea — first as owner of Rocky Mountain Remedies in Colorado and then, starting in 2015, as co-founder of New England Treatment Access (NETA) — was always to draw in people with chronic and even terminal illness who may consider cannabis a viable therapy.

By the time NETA opened its doors in Northampton and Brookline, the anecdotal evidence for the drug’s effectiveness had been well-established elsewhere, he noted.

“We knew patients were using these therapies for a broad range of conditions,” Fisher told BusinessWest, before praising the law crafted after voters approved legalized medical marijuana in 2012.

“In Massachusetts, they got it right. Instead of legislators playing physician, the law granted physicians the freedom to make recommendations as they saw fit. It was important to maintain the sanctity of that patient-physician relationship. And we wanted to make sure we would provide quality products for patients to meet that broad range of conversations with physicians.”

Now, another law has significantly altered NETA’s business model. On Nov. 20, the company’s Northampton site, as well as Cultivate Holdings, LLC in Leicester, became the first facilities in the Northeast to sell marijuana to the public for adult recreational use.

“We call the individuals who interact with customers our ‘customer service associates.’ We require vigorous training before they’re out on their own, interacting with customers.”

At a press event after the state’s Cannabis Control Commission gave the go-ahead, Amanda Rositano, NETA’s director of operational compliance, said the shop is “beyond thrilled to be a part of this historic moment when NETA Northampton finally gets to open its doors to adults over 21 to provide safe, legal, and regulated cannabis to the people of Massachusetts.”

It’s certainly a welcome shift for many in the Valley, but it comes with challenges — concerning consumer safety, public perceptions, even traffic on Conz Street, which backed up significantly at certain times in the days following Nov. 20. But Fisher said NETA has long been preparing to meet them.

Hannah Rosenbaum, one of NETA’s patient service associates

Hannah Rosenbaum, one of NETA’s patient service associates, with some of the ‘flower’ available for purchase.

Early on, for example, the organization brought in Leslie Laurie, former head of Tapestry Health and a long-time expert in public health in Western Mass., as its regional director. “She had expertise we could benefit from, a perspective on patients’ needs in Western Mass.,” Fisher said.

The founders also assumed — correctly, as it turned out — that the progressive culture in Northampton would prove welcoming to a dispensary that first sold cannabis products to a patients with prescriptions, and, now, to any adult with an ID.

“We felt [Northampton] was the place to go, and the process was pretty smooth,” he added. “I’m thankful for Leslie; she brought a credibility to our organization and the relationships we built with government and law enforcement. And we’ve only continued to build those relationships during the adult-use licensing, because they could appreciate the solid community partners we have been.”

Opening a medical-marijuana dispensary in Brookline, however, was a “whole different beast,” Fisher noted. “There were about 100 meetings required — some open to the media and the public, many with public officials … just meeting after meeting, a lot of hand-holding and reassurance. It was a very rigorous process.”

Despite that tougher road than the Northampton one, NETA felt affirmed when its license with Brookline came up for renewal after the first year. “The town said we didn’t even need to show up for the hearing; it was guaranteed. It made us feel like we had operated in the way we had promised.”

By contrast, Northampton was always a smoother fit, and is currently the only NETA site approved for recreational sales, as the licensing process continues in Brookline.

“A significant portion of the population embraces cannabis use,” Fisher said of the Paradise City, adding that NETA has never taken that goodwill for granted. “We did recognize the traffic and public-safety issues, and the fact that those needed to be carefully managed in a collaborative way.”

Time will tell if issues arise, of course, but for now, Fisher is pleased with the business — customers are still waiting in line most days — and NETA’s continued growth as what he calls a true community partner.

The Ayes Have It

In 2016, four years after the similar vote on medical marijuana, Massachusetts residents voted to legalize recreational sales to adults age 21 years and older. If they present a government-issued ID (such as a driver’s license, ID card, or passport) for verification, customers may purchase up to 1 ounce of ‘flower’ or 5 grams of concentrate. Certain potency restrictions, including a 5 mg serving-size limit for ‘edibles,’ apply to non-medical products.

“A significant portion of the population embraces cannabis use. We did recognize the traffic and public-safety issues, and the fact that those needed to be carefully managed in a collaborative way.”

However, Fisher was quick to note that, with the introduction of recreational sales, NETA’s medical-marijuana patients will remain the shop’s priority. Patients with prescriptions have their own lines, and at least 35% of each day’s inventory is reserved for patients. In short, the customer experience has not changed for people seeking to fill scripts.

As for those waiting in line for recreational sales, Fisher said it typically takes 20 to 30 minutes to get through, but technology is available to shorten the wait NETA uses a reserve-ahead app to view the daily menu, reserve an order online, and have it ready for pickup at a certain time later that day. In addition, for people looking to gauge the wait at any given time, NETA offers continuous live wait-time updates on its website.

It has also doubled customer service staff and remodeled the stores to offer nearly twice as many service stations.

Also ramped up are efforts to educate customers about cannabis products — a key factor, considering that many users are likely to be inexperienced.

“We call the individuals who interact with customers our ‘patient service associates,’” Fisher said, noting that he prefers that over the flip industry term ‘budtenders.’ “We require vigorous training before they’re out on their own, interacting with customers.”

That training — about two months worth — includes everything from understanding the core components of cannabis products to encouraging new users to ‘start low and go slow.’

“That’s a message we drive home again and again to our PSAs and our customers. There will always be more cannabis. So find out what works for you and what doesn’t, and start easy so you don’t have negative outcomes.”

In addition to the ‘low and slow’ guidance, NETA’s consumer-education materials emphasize elements like a ‘what product is right for me’ guide; advice against driving or using heavy machinery under the influence, public consumption, and traveling across state lines; a potency and tolerance tutorial, safe storage; and recognizing substance-abuse signs and identifying resources for additional help.

Recognizing that some of the opposition to legalized marijuana came from individuals concerned about products getting into children’s hands, all NETA product packaging is child-resistant and labeled with revised warnings and clear information to ensure that people can identify edible products as marijuana-infused and not safe for children.

In addition to training staff to emphasize responsible consumption when interacting with consumers, NETA has retained a full-time training coordinator to continuously develop and manage retail-staff training.

Understanding dosage levels is is important, Fisher said, as are reminders that the effects differ between smoking marijuana and ingesting edibles. In the latter case, “you could see a delayed onset, so don’t eat that whole bag if you don’t feel it’s working. That sounds like simple advice, but it’s a big deal for us.”

As it is for the Cannabis Control Commission, which encourages prospective customers to know the law and consume responsibly.

“This signal to open retail marijuana establishments marks a major milestone for voters who approved legal, adult-use cannabis in our state,” Chairman Steven Hoffman said last month. “To get  here, licensees underwent thorough background checks, passed multiple inspections, and had their products tested, all to ensure public health and safety as this new industry gets  up and running. As patrons look forward to visiting Massachusetts stores, we hope they will do their part by first familiarizing themselves with the law and understanding what is required of responsible consumers.”

Growing Concerns

Beyond Northampton and Brookline, Fisher said, NETA’s cultivation facility in Franklin — which has nearly doubled its capacity in anticipation of adult use — continues to invest heavily in research and is developing a pipeline of products designed to improve customers’ experiences and address specific medical conditions and symptoms.

And, make no mistake, even though adults can buy cannabis products without a doctor’s prescription, he added, it still makes sense to receive and renew certification as a patient — not just because of the lessened wait to be served, but because patients also avoid the 20% tax on adult-use sales, and can access a yearly voucher program to help offset the cost of being certified.

He’s also excited about the potential in Massachusetts, considering the scientific and medical resources available locally, to continue researching the benefits of marijuana from a medical perspective. “Clearly, we’re going to get more research; we have some of the brightest minds in the world of healthcare here in Western Mass.”

NETA’s products for sale include not just smokeable flower, but marijuana-infused capsules, lozenges, lotions, chocolate, and much more.

NETA’s products for sale include not just smokeable flower, but marijuana-infused capsules, lozenges, lotions, chocolate, and much more.

Overall, Fisher is a believer in the benefits of this industry, in terms of healthcare, quality of life, and economic benefits, like taxes paid and workers hired. The company employs close to 600 people, more than 100 in Western Mass. alone.

“Billions of dollars are spent yearly in this country [on marijuana], so by regulating it, there’s economic impact that can be realized, taxes to be paid, safety measures put in place … you’re not in someone’s car in an alley.”

And for adults who have no particular health condition but simply want to partake as an escape from life’s stresses, well, he believes there are far worse alternatives for that.

“That’s not to encourage broader consumption of cannabis, but let’s normalize it so parents can talk to their kids about it,” he told BusinessWest. “In Colorado, where it’s a mature industry, the youth rates have gone down. It’s just less cool for kids. There’s more open dialogue. Parents are having more discussions about it.”

And, he was quick to add, that guy selling pot on the corner, in states where it remains illegal, doesn’t check an ID like a responsible dispensary does.

“We’re bringing it from the darkness into the light and realizing a lot of positive outcomes,” he said. “On balance, this is a good thing.”

Joseph Bednar can be reached at [email protected]

Law

Hazy Picture

Just as the business and legal communities in Massachusetts were learning to deal with medical marijuana, voters kicked the door wide open in 2016 by legalizing the drug for recreational use, too. That created a tangle of issues to work out, from how to handle employees that use the drug outside work to launching a cannabis business in the face of federal law that calls the practice illegal. Some of those issues have been sorted out, but others still hang in the air, like so much smoke.

When it comes to the relationship between employers and medical marijuana, few names are as important as Cristina Barbuto.

She’s the woman who filed suit against her employer, Advantage Sales and Marketing, three years ago after being fired — after her first day on the job — for using marijuana outside of work. She was required to take a drug test, and told the employer before the test that she would fail, because she used marijuana at home to help manage her Crohn’s disease.

A supervisor said that wouldn’t be a problem, but Barbuto was dismissed from the job the next day when the drug test came back positive for marijuana. The reason? While medical marijuana was legal in Massachusetts at the time, it was still illegal under federal law.

Her complaint eventually made its way to the state Supreme Judicial Court, which affirmed her right to use medical marijuana outside work on the grounds that forbidding her — as long as she wasn’t impaired on the job — constituted disability discrimination.

“If somebody qualifies as a disabled person and they’re seeking an accommodation, the employer has an obligation to engage in a process with that person and provide a reasonable accommodation that allows them to do their job, unless they can show the accommodation would cause them an undue hardship,” said Pat Rapinchuk, a partner with Robinson Donovan in Springfield. She noted that a subsequent suit by a man denied access to a homeless shelter for his medical-marijuana use came down on the plaintiff’s side as well, on the same grounds as the Barbuto suit.

“But then comes the recreational piece,” she said. “And that’s completely different.”

Indeed, with recreational use of marijuana having been legal in Massachusetts for a much shorter time, case law has not established similar rights for such users, she noted.

“Right now, I would say the recreational marijuana user does not have the protections a medical user does,” Rapinchuk said. “You start with just the basic premise of no substances in the workplace — no alcohol, no drugs. That part’s easy. But what if I used it last week on my own time and my employer drug tests for whatever reason, and I test positive, and I don’t have a medical reason for it? Can the employer either decline to hire me or even terminate me? And I think the short answer right now is ‘yes.’”

In one case that has garnered some media attention, Bernadette Coughlin, a food service supervisor for Sodexo, was fired after being injured in a fall at work. The company required a drug test following an injury, and she tested positive for marijuana, which she admitted she used recreationally at home a few days before. She was fired, and is fighting the termination in court — but might have an uphill battle, Rapinchuk said, because she doesn’t have the disability claim that Barbuto did.

From left, Bulkley Richardson attorneys Scott Foster, Sarah Willey, Mary Jo Kennedy, Ryan Barry, and Kathy Bernardo take part in a recent cannabis panel.

From left, Bulkley Richardson attorneys Scott Foster, Sarah Willey, Mary Jo Kennedy, Ryan Barry, and Kathy Bernardo take part in a recent cannabis panel.

“You’d have to find another route to challenge that,” she added, noting that one possibility is challenging the drug test itself as an invasion of privacy. “Some courts have found such a test to be invasive, and a violation of an employee’s privacy. If they found out otherwise, like through social media, that might pass muster.”

If all this sounds amorphous, it is, Rapinchuk said, and is a field of employment law that is definitely evolving. Drug tests can detect THC, the psychoactive agent in marijuana, for days, even weeks after someone smokes or ingests it, and no tests exist to gauge whether the user is currently impaired. That leaves employers with plenty of hard questions about how they want to handle this new frontier.

Growing Concerns

But that’s not the only area of the law currently evolving in the face of legalized marijuana.

Perhaps the most significant wrinkle in marijuana law, Scott Foster says, is that it’s legal in the state but illegal federally. That drives many of the odd situations people find themselves in when they start a marijuana business, and it’s why Bulkley Richardson, where Foster works as a partner, recently launched a dedicated cannabis practice.

As one example, a marijuana business cannot use most banks.

“It’s considered to be money laundering on a federal level to run marijuana money through the banking system,” he explained. “You can’t use an ATM, you can’t use a credit card, and you can’t take the proceeds from the sale of marijuana and deposit it at a bank if they know it’s marijuana funds.”

There are two exceptions: Centurion Bank and Gardner Federal Credit Union. “We literally have marijuana clients driving $50,000 to $100,000 in cash to Boston in armored cars to deposit it at [Centurion],” Foster said, adding that the bank’s fees for the service are astronomical. “The bank is basically taking a business risk. I don’t know if it’s a good risk or bad risk, but no other big banks are taking the chance because the penalties would be devastating to them. Centurion is willing to take the chance.”

Meanwhile, people buying real estate as part of a new business typically finance 60% to 80% of the cost, he noted, but banks can’t lend for this purpose any more than they can take deposits.

“So what you end up with is a lot of very wealthy people playing in this space because you can’t finance it. You’ve got millions and millions of dollars being poured into these ventures that are growing, and nobody hears about it because it’s all private financing. That’s another area where it looks like a normal business until you ask, ‘where’s the money coming from?’”

Then there’s intellectual-property law. Most new businesses federally register their trademarks, but that’s not available for any branding involving marijuana products. “You can come up with this great brand name, this great logo, and you can’t protect it federally,” Foster said. “So now we’re going back to the state system, which does exist in Massachusetts. There is a way to protect trademarks at the state level that, until the marijuana business, nobody had done for 100 years.”

As he and Kathy Bernardo, another Bulkley partner on the cannabis team, spoke with BusinessWest, it became clear why the new practice group includes lawyers that specialize in myriad disciplines.

The disconnect between state and federal law shows up in taxation as well. Foster brought up a quirky section of the tax code that came about after the IRS went after a cocaine dealer in the Midwest for tax evasion, so the dealer filed a tax return that wrote off expenses like security and armored cars. The IRS balked, but a tax court sided with the man.

Pat Rapinchuk says some employers might avoid drug testing for marijuana

Pat Rapinchuk says some employers might avoid drug testing for marijuana as not to rule out some strong potential employees.

“Congress later added section 280E to the tax code, which essentially says if your business is in the growing, manufacture, or distribution of a federally controlled substance, you’re not allowed to take normal business deductions,” Foster explained, and then broke down an example of how that may affect a cannabis-related enterprise.

Say a business makes $100,000 and, after spending $40,000 on product, $20,000 on employees, and $10,000 on rent, claims a profit of $30,000. The owner then pays taxes on that figure; if he owes, say, 40%, he makes a profit of $18,000. But if he’s not allowed to write off expenses, suddenly he’s paying 40% on a much larger chunk of that $100,000 — and taking home much less in profit.

“The effective tax rate is two to three times the size of a normal business. And even though it’s against the law federally, you still have to pay taxes,” Foster noted. “It’s another trap for the unwary.”

Joint Enterprises

From a real-estate point a view, issues like zoning laws, special permitting laws, and host-agreement laws also come into play, Bernardo said.

“Municipalities have held the cards because they have to either accept a marijuana zoning district, or they have the ability to shelve it until we actually get the regulations out for recreational use, but that’s coming to an end, so now they have to decide whether or not they’re going to allow this in town or not.”

That depends largely on how the vote went in that particular community when the ballot question legalizing recreational pot in Massachusetts passed last November. In many Western Mass. communities where the vote was in favor, town officials have been busy putting together zoning bylaws for a marijuana district.

Kathy Bernardo

Kathy Bernardo

“Municipalities have held the cards because they have to either accept a marijuana zoning district, or they have the ability to shelve it until we actually get the regulations out for recreational use, but that’s coming to an end, so now they have to decide whether or not they’re going to allow this in town or not.”

“The people of town agreed that’s going to be there, and they’ve discussed how and where,” she explained. “A lot of towns put a moratorium on it — which was fine, they were allowed to do that, but they were only allowed to do it for a year, and now they have to come to a determination whether or not they’re actually going to have that zoning district in their municipality. But that is all steered by what the vote was in their town.”

If the town’s voters favored legalizing recreational marijuana, Foster added, it puts them in a different approval process locally than if voters were against it as a group.

“If they were against it, the city council or select board has no authority unless and until they do another ballot initiative, another referendum at the town level, to approve it,” he explained. “I don’t think anybody’s really looking, from a business point of view, to go into those towns. It’s just too much of a hurdle.”

Once permitting and zoning procedures are established, business owners have to work with the town on compliance issues, Bernardo said, “and there are a lot of intricacies that you don’t usually have with a lot of other businesses. With this, it’s completely different.”

Bulkley Richardson’s cannabis group has represented outfits ranging from farmers looking to cultivate the plant to people looking to profit on the retail end, she noted, and the cultivation aspect is one that has flown under the radar, yet is important to this region.

“A lot of the things you see in the news are about the pot shops,” Foster said. “What’s not getting picked up as much is the fact that, in order to sell something, you have to first grow it, and it’s a lot cheaper to grow things in Western Mass. than it is in Eastern Mass., in terms of the cost of the land.”

The next step is the extraction and production process, he went on, and that’s an entirely different type of business with its own nuances. “It’s not just selling the leaves, it’s extracting the THC and then putting it in something — oil, an edible, a cream, or something else. Then those products are sold. So you’ve got farming, you’ve got manufacturing, and you’ve got retail. And the farming and the manufacturing are actually happening more around here.”

Foster said his firm launched the cannabis practice because the attorneys were already working with clients in the area on these various enterprises.

“We tell people, ‘here are the ways that a marijuana business is 90% exactly like any other business, and here is the 10% where it’s just wacky different, and these are the things you have to think about.’ But it’s still real estate. It’s raising money. It’s hiring people. It’s all the regular laws which you otherwise have to comply with.”

What is certain, Bernardo added, is that marijuana is now a fast-growing (no pun intended) part of the Massachusetts landscape, and that’s not going to change any time soon.

“It’s here,” she said, “and we have to learn how to deal with it rationally, because people are getting into these businesses, and there are so many balls up in the air when they get a business running.”

Smoke Signals

But while those cannabis-related businesses continue to pop up, employers at … well, pretty much every other type of company must grapple with their employees’ use of the drug outside the workplace.

“There are no tests to determine if someone is impaired by marijuana. There’s no sanctioned way to measure the amount of THC in someone’s system,” Foster said, adding that one reason is that federal grants — here’s that separation of state and federal law again — are not available to research these tests.

“You have a whole system that works on the alcohol side that makes sense — the tests are developed, and the laws are passed that go to those tests,” he said. “None of that exists yet on the marijuana side. The research is happening, but it’s happening with private money, which means it’s subject to more influence and bias.”

Bernardo said a lot of companies that used to test for marijuana are deciding not to do so going forward, due to the uncertainty. “They’ve just eliminated it completely, unless you’re a driver or it’s a safety issue. They don’t even want to deal with it.”

That makes sense in a job market with historically low unemployment, Rapinchuk said, when aggressively testing for THC might make it tougher to compete for talent.

“Employers are trying to hire a good workforce, and they’re going to be ruling out an awful lot of potential employees if they’re going to take that position, so it is possible some employers will decide not to test for that,” she told BusinessWest.

No matter what their stance, she added, it’s probably wise for employers to review their drug-testing policy to make sure it’s clear and consistent, and doesn’t need to be modified in light of the change in the law.

Medical marijuana remains an easier field to navigate than recreational use, she stressed, citing as a recent example a young man who had a medical marijuana card and applied for a position at a local company.

“They told him, ‘we drug test everybody, not just health or safety positions,’ and he disclosed his use to the employer through the testing agency and brought his card. Sure enough, he tested positive, and there was questioning — how often he used it, who’s his doctor, what’s the prescription — but once all those questions were answered, they hired him. So they followed the advice of the Barbuto court in that case.”

Whether dealing with marijuana use by employees or actually launching a cannabis business, Foster said, this is definitely new territory for lawyers, thanks to that gaping disconnect between state and federal law.

“As a licensed group, one of our rules is that can’t help your clients commit a crime,” he said. While the Massachusetts Ethics Commission passed a ruling that allows lawyers in the Bay State to engage in such activity because it’s permitted on a state level, he added, “you still have to tell clients they’re engaging in something that is illegal at a federal level. The nuances are deep and subtle.”

“And can cause a lot of trouble,” Bernardo quickly added.

Joseph Bednar can be reached at [email protected]

Employment

Talking Pot

By Erica E. Flores, Esq.

It took almost two years, but Massachusetts regulators have finally started to issue licenses to businesses looking to grow, manufacture, distribute, and sell recreational marijuana products in the Commonwealth.

The first license went to a cultivation facility in Milford back in June; since then, the Cannabis Control Commission has issued licenses to six other businesses, including provisional licenses for retail locations in Northampton and Easthampton.

Erica E. Flores, Esq.

Erica E. Flores, Esq.

Despite this progress, however, retailers cannot open their doors just yet — retail marijuana products must be tested for various contaminants before they can be sold, and the commission has yet to issue a license to a testing facility. But with the licensing process finally picking up steam, and public pressure on the commission to allow the voter-approved industry to take root, Western Massachusetts employers may be wondering how these changes will affect their workplace and what they can or should be doing to prepare.

Here’s what you need to know now:

Marijuana in the breakroom?

The recreational marijuana law specifically provides that it “shall not require an employer to permit or accommodate conduct otherwise allowed by [the law] in the workplace,” and further, that it “shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.”

This means that employers who pre-screen job applicants for marijuana, have drug-free workplace policies that prohibit employees from working under the influence of drugs or alcohol, and who conduct other lawful drug tests of employees may continue their current practices, and need not accommodate an employee’s use of marijuana for recreational purposes, even when they are off duty.

That being said, the availability of marijuana products for sale at retail locations (and, eventually, at so-called “cannabis cafes”) will likely drive an increase in marijuana use by adults across the state. This means that employers may see a rise in positive drug-test results by applicants and those who are subject to random testing. Employers may also see an uptick in employees arriving to work impaired and/or using marijuana products on the job.

To combat these potential problems, employers who have drug-free workplace policies might consider issuing reminder notices to employees making clear that their policies apply to marijuana just like they do to alcohol, which is also legal.

Employers may also want to adopt a reasonable-suspicion drug-testing program, if they do not have one already, and train their managers and human resources professionals about how to recognize the signs and symptoms of marijuana impairment and how to properly document their observations. Such evidence, in combination with a positive test result, can help an employer prove that its reasons for disciplining or terminating an employee were legitimate should the employee challenge that decision in a legal forum, particularly given the fact that currently available drug-testing methods do not measure current impairment; they can only detect that the drug is in an employee’s system.

Drug-testing Considerations

Employers may also want to reconsider the scope of their pre-employment drug-testing programs. Such tests are legal in Massachusetts, but a 2016 decision out of the Mass. Superior Court suggests that employers who screen applicants for non-safety-sensitive positions run the risk of being sued for an invasion of privacy. Accordingly, employers can reduce their risk of a privacy claim (and possible liability) by eliminating marijuana from the testing panel for non-safety-sensitive positions or even doing away with drug screens for such positions altogether.

“… employers who have drug-free workplace policies might consider issuing reminder notices to employees making clear that their policies apply to marijuana just like they do to alcohol, which is also legal.”

Finally, employers should be prepared to address requests by prospective and current employees to tolerate the use of marijuana as a reasonable accommodation for a disability. Last year, the Supreme Judicial Court ruled that Massachusetts employers have a legal obligation to accommodate a disabled employee’s off-site, off-duty use of medical marijuana, pursuant to a valid prescription, unless there is an “equally effective alternative” or the employer can demonstrate that the accommodation would be unduly burdensome.

The decision relied, in part, on the language of the medical marijuana law, which guarantees to registered users the continued benefit of all “rights and privileges.” But many disabled employees may choose to bypass the medical marijuana registration process when they are able to obtain the drug at a recreational shop, potentially at a lower cost, while avoiding the cost, time and potential stigma associated with becoming a registered medicinal user. Must these employees also be accommodated?

Technically, the SJC’s decision applies only to employees who have registered as part of the medical marijuana program. Additionally, both the legislature and the Cannabis Control Commission may seek to keep it that way. To be sure, it may not be such a good idea for doctors and other healthcare providers to be able to recommend marijuana as a treatment for a medical condition without going through the process that would enable them to actually prescribe the drug.

Further, it may be bad public policy to encourage disabled persons to self-medicate by using marijuana products that are designed for recreational use as medication. On the other hand, if an employee can demonstrate a disabling condition and the absence of an equally effective alternative to marijuana, allowing employers to deny the accommodation just because the employee obtained the drug at a recreational shop seems somewhat arbitrary.

Bottom Line

These competing considerations are not likely to be resolved all at once, and certainly not right away. So employees who do not want to risk becoming the test case should give some thought to the pros and cons of accommodating such employees and devise a strategy that makes the most sense for their unique business.

When in doubt, employers should consider retaining employment counsel to help them navigate these difficult and ever-changing legal issues.

Erica E. Flores is an attorney at the firm Skoler, Abbott & Presser, P.C.; (413) 737-4753 or [email protected]