Employers' rights and restrictions under the new recreational marijuana use law

Issue January/February 2017 January 2017 By Meghan Slack

On Dec. 15, 2016, The Regulation and Taxation of Marijuana Act ("the Act") began to take effect in Massachusetts. It is now legal, under state law, for adults 21 years of age or older to possess and use recreational marijuana under certain restrictions. To date, voters in eight states and Washington, D.C., have passed ballot initiatives allowing for recreational use of marijuana. Twenty-one additional states have passed laws that will allow individuals to use marijuana for medicinal purposes. Looking at how other jurisdictions have interpreted employers' rights under similar laws, we can make some educated predictions on how this new law will impact Massachusetts employers.

Drug-Free Workplace

The Act provides some guidance about employers' rights. As with the Massachusetts Medical Marijuana Initiative, the new law protects marijuana users from civil and criminal penalties. However, nowhere in the text does it create a private cause of action against employers. The law permits employers to maintain drug-free workplace policies, prohibiting use at work and employees from working while under the influence. Also important to note, many federal contractors and federal grantees continue to be bound by the federal Drug-Free Workplace Act, which requires these employers to maintain drug-free workplace policies.

Drug Testing

Marijuana is still a Schedule I substance under federal law, which means any use, including medicinal use, violates the Controlled Substances Act. In other jurisdictions, courts have relied on this fact considerably and regularly upheld employers' rights to terminate employees for marijuana use. Still, Massachusetts employers must carefully weigh everyone's interests in having safe and drug-free workplaces against employees' privacy rights when evaluating their drug testing policies.

Policies should focus on workplace safety and preventing use on the job. For safety-sensitive positions, random drug testing will likely continue to be permissible, however employers should consider eliminating such tests when safety is not of concern. If an employer has reason to believe an employee is intoxicated at work, drug testing that employee would also likely be permitted regardless of the employee's position. Because there is currently no way of testing for marijuana that can distinguish between an individual who is actively under the influence versus one who has recently used but is no longer impaired, employers should document the factors that lead them to suspect active intoxication to counter any claims of wrongful termination.

In all cases, employers should provide advanced notice of their drug testing policies, including pre-employment testing. For example, if a job offer is contingent on passing a drug test, the applicant should be notified in the offer or earlier in the application process. Because the new law may create confusion among workers and applicants, policies should explicitly state that drug testing will include testing for marijuana.

The new state law will not affect employer obligations under federal law. Notably, employers must still comply with the Department of Transportation drug testing requirements.

Finally, uniform enforcement of drug testing policies will be paramount. Inconsistency in the application of these policies could inadvertently lead to charges of illegal discrimination based on an employee's protected class status.

Recent Massachusetts Trial Court Dismissal

Also of note is a recent decision out of Suffolk Superior Court, which provides some insight into how the Act will be interpreted by Massachusetts courts. In Barbuto v. Advantage Sales and Marketing LLC, et al., the court dismissed several wrongful termination claims filed under the state medical marijuana law. The plaintiff, who had a valid prescription for marijuana, was fired after she tested positive for the drug. The court noted that the medical marijuana law, like the new recreational use law, does not provide a private right of action against employers. The court determined that the employer had no obligation to accommodate the employee's marijuana use under the Americans with Disabilities Act. Lastly, the court found no public policy violation in terminating an employee who uses medical marijuana. However, the court did not resolve whether the drug testing was a violation of the employee's privacy rights.

What Employers Can Do Now

While we await further guidance for employers through regulations, court opinions and possible legislation, it is advisable for employers to reevaluate their existing drug policies and tailor them to protect their interests in maintaining a safe and drug-free workplaces, while balancing their workers' privacy interests. Employers with existing policies should affirm to their employees that those policies are still in force and clearly note that drug testing will include testing for marijuana. Finally, as this area of law continues to develop, employers should seek out assistance from experienced employment attorneys in redrafting and enforcing their drug policies.