On March 18, 2019, the governor signed the new medical marijuana changes into law. Currently known as Chapter 2019-1, the legislation expands upon the medical marijuana laws previously implemented. Of particular interest is that the revised laws now permit the smoking of medical marijuana to fall within the definition of “Medical use.” However, the smoking of medical marijuana is limited, and is still prohibited on public transportation, in a school bus, vehicle, aircraft, or motorboat, and in an enclosed indoor workplace. Moreover, additional requirements are imposed upon physicians making a determination that smoking is an appropriate route of administration, as well as imposing limits on the amount of marijuana that may be prescribed at one time. Additional labeling requirements have also been established for marijuana in a form for smoking, including a warning that it be kept away from children and a warning that marijuana smoke contains carcinogens and may negatively affect health.
While there are many nuances to the new laws, of particular interest to our clients is how the new legislation affects their home and work life and their ability to restrict or regulate smoking of medical marijuana on their private property or in their businesses. It is important to understand that employers are not required to permit or accommodate medical marijuana in the workplace. The existing law already provided that an employer may establish, continue, or enforce a drug-free workplace program or policy; that an employer is not required to make any accommodation for the medical use of marijuana in the workplace nor are they required to accommodate any employee working while under the influence of marijuana; and expressly stated that the law did not create a cause of action against an employer for wrongful discharge or discrimination. Now, since smoking of medical marijuana is permitted, the new law also establishes that the ability of any party to restrict or limit smoking or vaping marijuana on his or her private property is not impaired. So, the owner of any private property is still able to restrict or prohibit the smoking or vaping of medical marijuana on his, her, or its own property.
Our recommendation to our community association clients is to establish a policy regulating the use of medical marijuana, including but not limited to, the ability of an owner to smoke medical marijuana on limited common element property or common element property. The new law does not specifically address a condominium unit owner’s right to smoke medical marijuana in his or her unit. Presumably, a unit owner now has a legal right to do so; however, this right may be limited by other restrictions in the governing documents and rules and regulations prohibiting the interference with the rights of other unit owners to peaceably enjoy their units. We recommend contacting your community association’s legal counsel to discuss implementation of a policy regulating the smoking or vaping of medical marijuana in your community.
by Lauren B. Feffer, Shareholder, Rosenbaum PLLC