On November 8, 2016, Massachusetts voters approved a ballot question legalizing marijuana for recreational and commercial use. The Regulation and Taxation of Marijuana Act (the "Act") provides that - as of December 15, 2016 - persons at least 21 years of age may possess, use, purchase, process, and/or manufacture 1 ounce or less of marijuana outside their residence and up to 10 ounces of marijuana within their residence.
As relevant to employers, the Act provides that property owners may prohibit or otherwise regulate the consumption, display, production, processing, manufacturing or sale of marijuana and marijuana accessories on or in their property. Importantly, the Act further provides that it does not require employers to permit or otherwise accommodate conduct allowed by the Act in the workplace and does not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.
Employers should act fast to ensure that their drug use, drug testing, and any related policies are updated in light of the new law and clearly reflect the organization's position and expectations of its employees.
Employers subject to certain government and customer requirements with safety, health, and liability concerns are free to adopt zero-tolerance policies. Such policies should be clearly articulated to explicitly include marijuana. Otherwise, the term "illegal drug" could cause confusion - since marijuana is illegal under federal law but legal under state law.
With respect to testing, the legal risk of testing applicants for employment is low because the applicant may avoid any potential invasion of privacy simply by choosing to withdraw from the application process. Under the current law, employers are free to withdraw offers to applicants who test positive for marijuana, if the application and job advertisements provide notice.
Once an employee is hired, employers should only test employees in safety sensitive positions for marijuana, and only on a random basis or when they have reasonable suspicion that the employee is under the influence. Employers are cautioned to not test employees in non-safety sensitive positions, as such tests could invite invasion of privacy claims. Employers are free, however, to impose discipline based on observation of workplace impairment for employees occupying non-safety sensitive positions. Unionized employers must also ensure compliance with applicable provisions set forth in collective bargaining agreements related to drug testing, as well as compliance with the need to establish just cause when imposing discipline.
If you need guidance in crafting a policy that fits your workplace, or would like your drug use and off-duty conduct policies reviewed, we would be happy to assist you.