Understanding R.I.’s medical-marijuana law

Rhode Island and 18 other states – including Massachusetts and Connecticut – have enacted laws legalizing the use of marijuana for medical purposes. Rhode Island’s Medical Marijuana Act permits individuals carrying a valid registry identification card issued by the R.I. Department of Health to legally use marijuana for the treatment of qualifying medical conditions.
As the number of medical-marijuana cardholders in Rhode Island increases, however, companies are grappling with tough questions on how to reconcile the Medical Marijuana Act with the practical realities of running a business: zero-tolerance policies, safety concerns and federal contracts prohibiting marijuana use.
Below is some general guidance that may help local companies conduct operations in compliance with Rhode Island’s Medical Marijuana Act.
Many employers have longstanding zero-tolerance policies, mandating the termination of employees who test positive for illegal drugs on the job. These common policies can prove beneficial: they communicate a clear message about employee behavior, deter employees from using illegal drugs and ensure uniformity in disciplinary action. Zero-tolerance policies, however, may now pose a liability risk for employers because of the Medical Marijuana Act.
The act prohibits employers from refusing to employ or penalize a person solely because he or she possesses a valid medical-marijuana card. At first glance, zero-tolerance policies do not appear to conflict with the law, as it merely prohibits employers from discriminating against employees “on the basis of their status as a cardholder.”
But may employers terminate an employee who tests positive for marijuana, but not on the basis of holding a registry card?
As a general rule, employers should exercise great care in enforcing a zero-tolerance policy for two primary reasons. First, strict enforcement could run afoul of the Medical Marijuana Act. Second, Rhode Island also has a law governing drug testing of employees. It regulates when and how employees can be tested, and prohibits employers from terminating an employee on the basis of a single positive drug test. The employee may be terminated only if there are positive tests following the referral to a treatment professional.
Instead of strict adherence with zero-tolerance policies, employers should adopt policies that afford appropriate discretion when handling a positive marijuana drug test.
Companies often rely on employees to operate heavy equipment, drive vehicles and engage in physical activity. Employers are understandably concerned that medicinal-marijuana use may pose a safety risk. In fact, under the Occupational Safety and Health Act, employers are legally obligated to provide their workers with a safe workplace.
Fortunately, the Rhode Island Medical Marijuana Act does not require companies to tolerate safety risks. If an employee is unable to perform his or her job safely, the employer is not required to permit the employee to continue performing those functions.
Employers are cautioned, however, not to assume that an employee poses a safety risk merely because he or she is a holder of a medical-marijuana card. Users of marijuana for medical purposes have varying dosing requirements and may or may not be able to safely operate heavy, dangerous or sophisticated equipment.
Employers should also base safety concerns on objective observations. Employers may also take advantage of laws permitting employers to obtain limited medical information about whether the employee can safely perform job duties.
The federal Drug-Free Workplace Act generally requires federal contractors to provide a drug-free workplace. Such contractors may be concerned that, because marijuana is illegal under federal law, the Medical Marijuana Act directly conflicts with the Drug Free Workplace Act. A closer reading of the federal law may alleviate some of these concerns. The Drug Free Workplace Act requires federal contractors to comply with federal policies focused on workplace activities.
Federal contractors are required to maintain a workplace free of illegal drugs and to prohibit use of illegal drugs in the workplace. The law does not require employers to take disciplinary action against employees who test positive for illegal drugs. The law does not require employers to mandate drug testing. The law simply requires federal contractors to prohibit the use of illegal drugs in the workplace.
The federal law is silent on drug use outside the workplace. Most employees who use marijuana for medical purposes will not need to use marijuana during working hours in the workplace. If these employees are using marijuana for medicinal purposes outside of the workplace, there is no violation of the Drug Free Workplace Act by the employer.
If, however, an employee does use marijuana in the workplace, federal contractors may have no choice under federal law but to take adverse employment action against the employee to avoid any risk of losing their federal contract.
The full business impact of Rhode Island’s Medical Marijuana Act is still evolving. As more states enact similar laws, and more Rhode Island citizens become cardholders, private employers are likely to confront these issues more often. •


Christina L. Lewis is a partner at Hinckley Allen and Snyder LLP. Patrick A. Rogers is a partner in Hinckley Allen’s business-law group.

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