Published in NEHRA News (1/3/2019)
With the first recreational marijuana retail shops now opening in locations throughout Massachusetts, one legislator is proposing protections for employees who choose to use the newly-legal drug on their own time. The Boston Globe is reporting that Jason Lewis, a state senator from Winchester, Massachusetts, is planning on introducing legislation in the new year that, if passed, would prevent most employers from terminating or disciplining employees for off-duty, legal use of marijuana.
Current Massachusetts law makes it legal to use marijuana for medical and recreational purposes, but offers no employment protection at all for recreational users, even those who do not possess or use the drug at work. (A 2017 decision by the Massachusetts Supreme Judicial Court held that, under certain circumstances, off-duty medical use of marijuana may be a reasonable accommodation for a disabled employee.)
Senator Lewis’s legislation is still in the drafting stage, but he envisions a law that would treat legal recreational marijuana use in the same way that alcohol use is treated. Employers may act if an employee is, or is reasonably suspected to be, intoxicated at work. However, employers generally do not involve themselves in employee’s after-hours drinking.
As with all things, the devil will be in the details. Exceptions will need to be made for federal contractors and for other sensitive industries. It will also be challenging for legislators to establish clear and objective standards for when employers can discipline employees for on-the-job impairment, since it’s difficult to determine with certainty that someone is under the influence of marijuana. Unlike breath and blood tests for alcohol impairment, most drug tests will return a positive result days or even weeks after someone has used marijuana.
Employers will want to keep a close watch on this and other developments as Massachusetts continues to adjust to marijuana legalization. The new year is also a good time for employers to review their policies concerning drug use and testing with employment counsel.