Massachusetts is one of 19 states (plus Washington, DC) where recreational marijuana use is legal. The number jumps to 38 states for legal medical marijuana use. These changes in the law have also prompted some companies to adjust substance use policies for off-duty use and likely impact recruiting efforts, safety plans, drug-testing policies, and even social outings with clients. It also forces the business to choose between state and federal guidelines where marijuana is a Schedule 1 drug like heroin or opioids. Some city ordinances may have some authority as well.
Are there job protections?
Although the commonwealth legalized recreational use in 2018 and medical use in 2012, there are no laws on the books yet to protect employees or job applicants who test positive for marijuana consumption. Of course, employers can make their own rules on this matter, and some have.
Medical use accommodation
Employers may also need to accommodate off-duty medical use rather than risk a disability discrimination lawsuit – a woman with a medical marijuana prescription for her crone’s disease was fired on her first day at work after her new-hire drug test result came back positive. The state Supreme Court ruled in her favor, so employers should explore reasonable accommodation for what is a prescribed medication.
Employers can ban off duty use
The Regulation and Taxation of Marijuana Act, M.G.L.c.94G (known as the “Marijuana Act”), took effect on December 15, 2016. It permits employers to ban marijuana at work or be intoxicated by marijuana while at work. The act also does not protect employees who legally consume marijuana during off-duty hours from being dismissed. However, many newer laws across the country allow off-duty consumption, and some courts have already ruled in favor of employees’ marijuana use during their off-hours.
A clear policy is key
Companies must also consider what is fair and reasonable for workers if recreational marijuana consumption is legal and there is no impact on job performance. Regardless of its policy, it should be uniformly applied to all employees while employing reasonable accommodations for situations like medical conditions. Whether it is a zero-tolerance policy, no use on the job, or somewhere between, the policy should be clearly stated in the employee contract and handbook.
