By: Rudman Winchell Attorney Matthew Cobb
Several years have passed since the Maine Legislature enacted the Maine Medical Use of
Marijuana Act (MMUMA) in 2009, yet the legal status of marijuana continues to
present challenging issues for employers. Recent legislative developments in Colorado
and Washington where marijuana has been legalized under the laws of those
states and the ostensible “legalization” of marijuana this November by the City of Portland, Maine, have added to the
confusion. Further, marijuana continues to be illegal under the federal Controlled Substances Act. As a result, it is important for employers to
have a basic understanding of the scope of the MMUMA and case law interpreting
it, which for now controls the legal status of marijuana under Maine law.
Authorized Conduct for “Qualifying Patients”
The MMUMA authorizes a “qualifying patient” to, among other things, possess “up to
2 ½ ounces of prepared marijuana” and “marijuana paraphernalia.” 22 M.R.S. § 2423-A(1)(A), (C). A “qualifying patient” is “a person who has
been diagnosed by a physician as having a debilitating medical condition and
who possesses a valid written certification regarding medical use of
marijuana.” 22 M.R.S. § 2422(9). Debilitating medical conditions include, for
example, cancer, HIV and post-traumatic stress disorder. See 22
M.R.S. § 2422(2). A “debilitating medical condition” is also generally defined as “a chronic or debilitating disease or
medical condition or its treatment that produces intractable pain, which is
pain that has not responded to ordinary medical or surgical measures for more
than 6 months.” 22 M.R.S. § 2422(2)(B). A “valid written
certification means “a document on tamper-resistant paper signed by a
physician, that expires in one year and that states that in the physician’s
professional opinion a patient is likely to receive therapeutic or palliative
benefit from the medical use of marijuana to treat or alleviate the patient’s
debilitating medical condition or symptoms associated with the debilitating
medical condition.” 22 M.R.S. § 2422(16).
Protections and Anti-Discrimination Provisions
The MMUMA provides certain, narrow protections to
persons who are “authorized” pursuant to the criteria above to use medical marijuana:
1. Rights of persons or entities acting pursuant to this chapter. A person whose conduct is
authorized under this chapter may not be denied any right or privilege or be
subjected to arrest, prosecution, penalty or disciplinary action, including but
not limited to a civil penalty or disciplinary action by a business or
occupational or professional licensing board or bureau, for lawfully engaging
in conduct involving the medical use of marijuana authorized under this
M.R.S. § 2423-E(1).
2. School, employer or landlord may not discriminate.
A school, employer or landlord may not refuse to enroll or employ or lease to or
otherwise penalize a person solely
for that person’s status as a qualifying patient or a primary caregiver unless
failing to do so would put the school, employer or landlord in violation of
federal law or cause it to lose a federal contract or funding.
This subsection does not prohibit a restriction on the administration or cultivation
of marijuana on premises when that administration or cultivation would be
inconsistent with the general use of the premises.
A landlord or business owner may prohibit the smoking of marijuana for medical
purposes on the premises of the landlord or business if the landlord or
business owner prohibits all smoking on the premises and posts notice to that
effect on the premises.
22 M.R.S. § 2423-E(2) (emphasis added).
Although the Legislature enacted these limited
protections for persons authorized to use medical marijuana, it also made clear
that the MMUMA may not be interpreted to require “An employer to accommodate the
ingestion of marijuana in any workplace or any employee working while under the
influence of marijuana.” 22 M.R.S. § 2426(2)(B). The MMUMA also does not
permit any person to “undertake any task under the influence of marijuana when
doing so would constitute negligence or professional malpractice or would
otherwise violate any professional standard.”
22 M.R.S. § 2426(1)(A). In other words, the MMUMA does not
require an employer to allow employees to use marijuana on the job or in the workplace.
The Maine Supreme Judicial Court’s Interpretation of the MMUMA
The Maine Supreme Judicial Court weighed in on the MMUMA earlier this year in Savage
v. Maine Pretrial Services. According to the background provided in
the Court’s written decision, Savage was employed with Maine Pretrial Services
as a case manager for the Family Treatment Drug Court at the Lewiston District
Court. At some point between March and April 2010, Savage had discussions with her supervisor about her interest in
applying for a license to open a registered medical marijuana dispensary, and
soon thereafter filed the necessary application. On June 28, 2010, she was terminated from her
employment. Savage sued Maine Pretrial Services alleging in part that she had been terminated in
violation of the Maine Medical Use of Marijuana Act (MMUMA). The trial court dismissed that count of her
complaint concluding that it failed to state claim for which relief could be
granted. Savage appealed that decision
to the Maine Supreme Judicial Court (the Law Court).
The Law Court affirmed the decision and agreed that the MMUMA count was properly
dismissed. The Court concluded that Savage’s conduct in applying for a license was not protected conduct under the
MMUMA. The Court noted that the MMUMA
expressly authorizes using, prescribing, dispensing, and administering
marijuana. Further, the Court explained
that such conduct would otherwise be illegal but for the MMUMA; therefore, the
MMUMA’s express authorizations of that conduct create immunity from prosecution or other sanctions by state government.
Thus, the Court declined to extend the MMUMA’s limited authorizations to
conduct not expressly authorized by the Act.
The Court reasoned that because Savage’s conduct in applying for a
license to operate a registered medical marijuana facility was not otherwise
illegal it was not conduct protected by the MMUMA. Moreover, 22 M.R.S. § 2423-E(1) (the section
of the MMUMA under which Savage brought suit) does not create a private right
of action against private employers; rather, it protects against prosecution
and penalties by governmental regulatory entities.
As demonstrated above, the MMUMA provides only limited protections for persons
authorized under the Act to use medical marijuana. Maine’s highest court has likewise
interpreted the MMUMA narrowly. Although
the legal status of marijuana continues to be a complex and evolving issue, the
MMUMA has not significantly altered the legal landscape for employers with
respect to what employees may or may not do while on the job or at the
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