Marijuana is legal in MA – but is marijuana use protected by employment law?

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Marijuana is legal in MA – but is marijuana use protected by employment law?

While recreational marijuana use was legalized in Massachusetts in 2016, and the state’s first stores opened for business recently, some employers have yet to consider how this legal change will affect the employment relationship.

While persons over the age of 21 may legally use marijuana for recreational purposes, the change did not involve an expansion of employee rights. This means that Massachusetts is still covered by the principles of at-will employment, under which an employee can be terminated at any time, for any legal reason.

The disconnect between state laws legalizing recreational marijuana use, and federal laws prohibiting it, have created an additional gray area in the rights of employees and employers in company drug use policies.

In order to ensure that your company is ready for the potential legal challenges of recreational marijuana use by employees, consider:

  • Clearly define policy. Even though marijuana use is legal during an employee’s off-hours, employers are not required to tolerate on-the-job intoxication of any sort. A drug-free workplace policy should continue to be viable. However, the policy should be clearly written to ensure that it is understandable, and distributed to all employees.
  • Change employee handbooks. Handbooks should be updated so that new hires and existing employees have the opportunity to review the policy, and address any questions with their manager or human resources representative.
  • Rethink pre-employment drug screen. While a drug test may still be required as part of pre-employment screening, many employers have stopped testing for marijuana at all. If you suspect an employee is intoxicated on the job, testing may still be administered – just be aware that drug tests are not sophisticated enough, at this point, to reveal whether an individual is currently intoxicated or if the marijuana was used recreationally at some previous time.
  • Consider medical marijuana use. The Massachusetts state supreme court ruled that employers cannot terminate an employee on the basis of an approved medical marijuana treatment. The employer said that it deferred to federal laws prohibiting marijuana use in its decision to terminate an employee who had been prescribed marijuana to help with a medical condition. The court said that in this situation, making an exception to drug policy is a reasonable accommodation for the employer to make.
  • In the end, it is important for employers to consider the potential effect of recreational marijuana use on the employment relationship. A clearly defined policy, and updated screening policies can go a long way toward preventing any confusion about your company’s stance on marijuana use. The Brown Law Firm has been advising businesses and individuals for over 15 years. If we can assist you with this or any business/employment issue, call us for a consultation.
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Boston Bar Assosiation