by Jaimeson E. Porter
Boston – On December 15, 2016, recreational marijuana use became legal in Massachusetts. The new law legalizes the use and possession of up to one ounce of marijuana in public, and up to 10 ounces of marijuana at home for individuals 21 and older. The law also permits possession of up to six marijuana plants per person, with a maximum of 12 plants allowed per household.
What, Exactly, Does this Mean for Employers? The new law permits the recreational use of marijuana, similar to alcohol. The law does not, however, create an unyielding “right” to use or possess marijuana. Only those over 21 are covered by this law, like with the purchase of alcohol. Employers remain free to prohibit
the use of marijuana in the workplace if they want to, and remain free to require a drug-free workplace.
For Employers Subject to Federal Requirements – Marijuana possession remains a criminal offense under federal law. Thus, some employers still are required to establish and enforce a policy prohibiting drug use. For example, employers that have federal contracts or receive federal funding are subject to the federal Drug
Free Workplace Act and are required to establish and promulgate policies for a drug-free workplace. As another example, employers whose business activities extend into the federally regulated transportation industry are subject to federal Department of Transportation requirements concerning drug and alcohol testing.
What About Medical Marijuana?
Given the newness of medical marijuana’s legalization in Massachusetts (which went into effect in 2013), little case law exists addressing whether employers need to accommodate medical marijuana use. A Massachusetts judge held in June 2016 that the state’s anti-discrimination statute does not require an employer to accommodate an employee’s use of medical marijuana — even when that employee’s use was outside of work. The Supreme Judicial Court of Massachusetts granted review of this case and heard the parties’ arguments in March 2017 regarding 1) whether the termination of employment based lawful use of medical marijuana outside the workplace constitutes unlawful discrimination; and 2) whether the medical marijuana act creates a private right of action for an employee that is terminated for medical marijuana use.
What About Drug Testing? The new law is silent on the issue of drug testing. In addition to existing federal laws and regulations, existing Massachusetts privacy law also continues to govern this issue. Currently in Massachusetts, individuals have a statutory right to privacy, which provides freedom from unreasonable, substantial or serious interference with their privacy and courts have found that unwarranted drug testing violates this privacy right. Thus, where employers are not drug testing pursuant to a federal requirement, they generally need to demonstrate some overriding business interest in knowing if their employees are using drugs that outweighs the employee’s privacy interest.
Ultimately, when drug testing is not mandated by federal law, the question of whether a drug testing policy is appropriate and permissible depends on the job duties of the employees being tested. Employers have a far greater interest in testing employees that are performing work implicating safety concerns, for example, such as those using power tools, operating machinery, or driving as part of their job, than they do testing employees performing desk work.
A drug testing policy that may be justified for one employee might be invalid for another. Employers should proceed with caution before drug testing any employee, and should avoid any one-size- fits-all policies.
Big picture: employers should take this opportunity to reexamine the type of work they do, the laws they are subjected to, and the drug and alcohol policies they are promulgating. All Massachusetts employers remain free to establish and enforce a drug-free workplace under the new law, and some Massachusetts employers are still required to promulgate and enforce certain drug related policies (including drug testing) due to federal law requirements.
Jaimeson Porter is an employment and business litigation lawyer at Kenney & Sams, P.C.
Jaimeson E. Porter
