By: Kenney & Sams, P.C.

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 twenty-one 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. The law specifically states that it does not “require an employer to permit or accommodate conduct otherwise allowed by this chapter in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.” Further, the new law expressly prohibits marijuana smoking anywhere that cigarette smoking already is prohibited.  Thus, any policies employers already have in place concerning smoking cigarettes on or around the premises will automatically also extend to smoking marijuana.

For Employers Subject to Certain Federal Requirements

Marijuana possession remains a criminal offense under federal law.  Thus, some types of employers still are required to establish and enforce policies prohibiting drug use. For instance, 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. Drug testing is not mandated under the Act, however covered employers must adhere to other requirements including publishing and distributing the company’s anti-drug policy to employees, establishing an awareness program informing employees of the risks of drug use, and notifying the federal contracting agency of any employee drug convictions.

Additionally, employers whose business activities extend into the federally regulated transportation industry are subject to federal Department of Transportation requirements concerning workplace drug and alcohol testing, including requirements that employers take immediate corrective action if certain types of employees test positive for drugs. The DOT imposes such requirements for employees in the aviation, railroad, mass-transit, and pipeline industries, employees operating commercial vessels, and for carriers and commercial driver’s license holders. Similar policies regulating employee drug and alcohol use are mandated for companies that perform work for the Nuclear Regulatory Commission, the Department of Energy, and the Department of Defense.

What About Medical Marijuana?

Given the recency 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 Suffolk Superior Court judge held in June 2016 that the Massachusetts 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 judge’s conclusion rested on the fact that marijuana remains illegal under federal law. Additionally, the medical marijuana law expressly states that nothing in the law requires the violation of federal law. Most courts outside of Massachusetts have reached similar conclusions on this issue – that is, because marijuana remains illegal under federal law, state disability discrimination statutes do not extend to marijuana use.

The court found its holding consistent with the law of other jurisdictions, noting that where states have legalized the use of marijuana for medicinal purposes, other courts have held that existing state disability statutes do not extend to medical marijuana use because marijuana remains illegal under federal law. Other courts also have held that no employee private right of action exists under state medical marijuana acts in the absence of express statutory language prohibiting adverse employment actions because of medical marijuana use.

The Supreme Judicial Court of Massachusetts recently granted review of this case.  In January 2017, the Court requested legal briefing on the issues of 1) whether the termination of an employee’s employment based on her lawful use of medical marijuana outside the workplace violates G. L. c. 151B, § 4 (the Massachusetts anti-discrimination statute), and 2) whether the medical marijuana act and the regulations promulgated under it create a private right of action for an employee who has been terminated because of her medical marijuana use.

Employers and employees alike should stay tuned on this issue. We can expect the law to be developing soon as the Supreme Judicial Court weighs in on these pivotal questions and new cases arise concerning both recreational and prescribed 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. 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 interest in knowing if their employees are using drugs. In the absence of a legal requirement to drug test, an employer’s business interest in testing must outweigh the employee’s privacy interest for the testing to be warranted.

Courts use a balancing test to determine whether an employer’s interest in implementing a specific drug testing policy violates an employee’s privacy right. The degree of risk presented by the nature of the employer’s business often determines whether an employer’s business interest is enough to warrant drug testing. For example, even setting aside any applicable federal law, an employer engaged in dangerous work where safety is a primary concern (like construction) may have a substantial and legitimate interest in knowing whether its employees are using drugs. Conversely, an employer that just wants to ensure its workforce is productive, may not.

Considerations about the employee’s privacy interest implicate not just the act of testing drugs in an employee’s system, but also the process by which testing samples are obtained. Urinalysis testing, for example, is a significant invasion of privacy because urination is an inherently private act. Breathalyzer testing, on the other hand, would be a much lesser invasion of privacy given the public nature of breathing. Overall, the validity of a testing policy depends on the employer’s need to drug test based on the nature of its work, and the duties of the individual employees being drug tested.

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, 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 drug testing policies and requirements.

Risk Considerations for Employers

Again, the new Massachusetts recreational law does not expressly require employers to allow marijuana use. That is, an employer who chooses to terminate an employee because of the employee’s decision to partake in recreational marijuana use will not, as the law reads today, have violated the employee’s statutory rights under the new law. Employers could, however, infringe on an employee’s privacy rights by implementing unreasonable drug testing policies. As discussed above, employers are well advised to carefully review their drug policies to ensure that unreasonable policies and procedures aren’t creating risk for the company.

At the same time, the new law will undoubtedly increase recreational marijuana use amongst the general public. Employers engaged in potentially dangerous work, or that have employees performing tasks where safety concerns are implicated, would be well advised to remain vigilant about liability concerns and, importantly, ensuring employee sobriety on the job.

In Sum

Big picture: Employers should seize this opportunity to reexamine the type of work they do, the laws that apply to them, 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.