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.
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.
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
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.