Legal Updates

What Marijuana Legalization Means For Massachusetts Employers

As of last December, the recreational use of marijuana became legal in Massachusetts, leaving many employers wondering how the new law might impact the workplace. With proper policies in place, the new law should not substantially limit the ability of employers to make hiring and employment decisions based on an employee’s recreational marijuana use.

Background

On November 8, 2016, a majority of Massachusetts voters, through a statewide ballot initiative, approved “The Regulation and Taxation of Marijuana Act” (the “Act”). Key provisions of the Act include the following:

• Outside the home, adults ages 21 and over can possess up to one ounce of marijuana for their personal, recreational use.
• Inside the home, adults ages 21 and over may possess up to 10 ounces of marijuana for their personal, recreational use and may possess any marijuana produced by up to 6 plants cultivated on the premises.
• An adult may give up to one ounce of marijuana to another adult, but may not legally sell marijuana to another individual.
• Using marijuana in any public place remains illegal.
• Using marijuana in any place where tobacco is banned remains illegal.
• Retail sales of recreational marijuana may begin as early as January 1, 2018, depending on the pace of the state regulatory and licensing process.

Impact On Employers

The new law does not limit the ability of Massachusetts employers to set or enforce policies prohibiting employees’ use of marijuana at work. Specifically, the Act provides that it does not “require an employer to permit or accommodate conduct otherwise allowed [by the new law] in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.” Thus, for example, an employer may prohibit employees from using, possessing, or being under the influence of marijuana at work and may require drug testing under certain circumstances in accordance with the employer’s policies and applicable law.

Similarly, there is reason to anticipate that courts will continue to give Massachusetts employers leeway in taking adverse employment actions against employees for off-duty use of marijuana. For example, in a 2016 case involving the Massachusetts Medical Marijuana Law, Barbuto v. Advantage Sales and Marketing, LLC., a Massachusetts state trial court found that an employer was not required to accommodate an employee’s lawful after-hours use of medical marijuana. Given that use of marijuana for both medical and recreational purposes is now legal, it is quite possible that new challenges will be mounted to terminations prompted by off-duty use. However, marijuana possession and use remain unlawful under federal law, and Massachusetts (unlike certain other states) has no general statute shielding employees from discipline for engaging in lawful off-duty activities. Thus, the likelihood is relatively low of such challenges succeeding.

Practically speaking, it may be difficult for employers to determine whether an employee is impaired by marijuana during work hours. The symptoms and indicators of marijuana use are not as obvious as alcohol. Further, unlike with alcohol, traces of THC – the psychoactive chemical in cannabis – may remain in the body for weeks. Under current testing methods, it is often impossible for an employer to determine – based solely on test results – whether an employee was impaired at work or whether, for example, the employee had used marijuana over the weekend. We understand that scientists are currently working on developing a more accurate testing method, but for now, these uncertainties will remain.

Independent schools should note that the Act specifically provides that it does not “authorize the possession or consumption of marijuana or marijuana accessories on the grounds of or within a public or private school where children attend preschool programs, kindergarten programs, or grades 1 to 12 inclusive . . .” (Emphasis added.) Furthermore, a school, like any Massachusetts employer, may continue to prohibit the use of marijuana by employees in the workplace and schools have latitude to prohibit possession and use in school-provided housing. Of course, the overlay of the Massachusetts Medical Marijuana Law may be relevant.

What Employers Should Do

First and foremost, Massachusetts employers should review their relevant handbook policies. Any drug use policy should specifically address the use of marijuana, focusing on the issue of impairment and identifying prohibited conduct. Employees may not realize that marijuana is still an illegal drug under federal law. Thus, specifically listing marijuana as a prohibited substance is strongly recommended. For independent schools, it will be important to specifically note the law’s prohibition of marijuana on campus.

Employers should also revisit the issue of drug testing – both pre-employment and for current employees – and should make sure that any testing is conducted pursuant to a carefully drafted, consistently administered policy. Employers should make sure that – consistent with Massachusetts law – any random drug testing policy is narrowly tailored, taking into consideration the employee’s job duties and the employer’s interests. Conducting testing on a random basis is permitted only in limited circumstances in Massachusetts.

Employers with questions about the new law and its impact on handbook policies and workplace conduct are encouraged to consult counsel.