Navigating the Legalization of Marijuana in Massachusetts: What Employers Need to Know

Massachusetts voters legalized recreational marijuana through a ballot referendum in 2016. As of July 1, 2018, retail marijuana stores are now permitted to operate in the state. The law allows cities and towns to exercise local control to ban or limit marijuana dispensaries, which are now opening in various locations around the state.

While the law has received much positive attention, Massachusetts employers are working to balance their employees’ interests, workplace safety, and legal obligations.

The Marijuana Act as It Relates to Massachusetts Employers

The law as passed in 2016 allows those who are 21 and older to possess, use, purchase, process, or manufacture one ounce or less of marijuana, and to possess up to 10 ounces of marijuana at home. However, the law provides little guidance geared toward navigating issues that might arise within the workplace. What is clear is that the legalization of recreational marijuana does not require employers to permit or otherwise accommodate recreational marijuana use in the workplace; it also does not affect employers’ authority to enact and enforce workplace policies restricting the use of marijuana by employees. Of note, the law expressly protects employers against arrest, prosecution, and denial of benefits for employing someone who possesses up to 1 ounce of marijuana on their person at work or who possesses up to 10 ounces and/or grows marijuana plants at home. However, the law expressly prohibits the consumption of marijuana in public places, or in places where smoking tobacco is prohibited; operating a vehicle under the influence of marijuana is also prohibited.

Employer Drug Policies and Testing

With legal recreational sales starting throughout Massachusetts, marijuana is now far more available. With that, Massachusetts employers with zero-tolerance drug policies are faced with a dilemma: do they continue, business as usual, with their current policies or do they consider relaxing those policies as related to marijuana use? The dilemma is even more tangible for employers with drug testing programs. Now that marijuana is legally available for recreational use, employers may put themselves in a position of losing workers or diminishing their pool of prospective hires if they continue to prohibit and test for marijuana.

While marijuana remains illegal under federal law, even the Occupational Safety and Health Administration is considering taking a second look at the zero-tolerance approach to drug use. In a congressional hearing on April 17, 2018, Secretary of Labor R. Alexander Acosta suggested taking a “step back” to ask, “Are we aligning our drug policies and our drug testing policies with what’s right for the workforce?” Employers do not need to tolerate marijuana use by their employees, but they may consider a more nuanced approach in light of the new Massachusetts law. For example, employers may identify safety sensitive positions for which it would be dangerous to be under the influence of marijuana at work, and subject those employees to stricter testing and zero-tolerance policies.

Recreational Versus Medicinal Use

It is important to keep in mind that there is still a distinction between recreational marijuana use and medicinal marijuana use. As outlined above, employers are well within their rights to prohibit marijuana in the workplace and drug test for it. However, when an employee wants to use marijuana to treat a medical illness or condition, things can get complicated. With the legalization of recreational marijuana, we may see fewer individuals obtaining medical marijuana registration cards, even when they are using the drug for medicinal purposes. Employees carrying medical marijuana registration cards have some handicap discrimination protection under the Massachusetts Fair Employment Practices Act.

Key Takeaways

Although marijuana use is legal in Massachusetts, employers are not required to allow employees to work who fail drug tests or who report to work under the influence.

Employers may want to consider whether it makes sense for their particular businesses to relax their drug policies as they relate to marijuana.

Employers should be conscious of their obligation to engage in an interactive dialogue with employees who smoke marijuana to treat conditions or illnesses—regardless of whether those employees possess medical marijuana cards.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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