Massachusetts Votes to Legalize Marijuana for Recreational Use: Now What?

by Erica E. Flores

Just four years after Massachusetts voted to legalize the use of marijuana for medicinal purposes, voters in the Commonwealth have now approved Question 4, a ballot proposal to legalize and regulate marijuana for recreational use by adults age 21 and older.  With 99% of precincts reporting, the measure had earned the approval of 54 percent of Massachusetts voters.  So what happens now?  And how will state action to implement the new law impact your workplace?  Many questions remain to be answered, but here is what we know right now.

The ballot proposal calls for the creation of a three-member licensing authority to be called the Cannabis Control Commission.  That Commission will be responsible for passing the regulations that will govern the licensing of commercial marijuana establishments – including cultivators, manufacturers and retailers – as well as security and record-keeping requirements, health and safety standards, testing, packaging, labeling and advertising, inspections and related matters.  The law presently calls for marijuana products to be subject to a 3.75% excise tax on top of the state’s 6.25% sales tax, and for the proceeds to be deposited in a Marijuana Regulation Fund to fund the Commission’s activities, with any remainder going into the state’s general fund, but the Commission will also have the authority to review the tax rate on an annual basis, and to make proposals to the legislature for increasing or decreasing that rate.  The Commission’s members are to be appointed by the state treasurer and are to be advised by a 15-member Cannabis Advisory Board, whose members are to be appointed by the governor.

At the local level, cities and towns will initially be required to issue up to one-fifth (20%) the number of licenses they issue to liquor stores to marijuana retailers.  So if your community makes ten liquor licenses available to local retailers, it will have to issue up to two licenses to businesses who wish to sell marijuana products.  However, communities will also have a great deal of independent authority to regulate local marijuana businesses by adopting reasonable restrictions on the time, place and manner in which they operate.  Municipalities can also impose an additional local sales tax of up to 2%, and may even hold a local vote to determine whether marijuana businesses may allow consumption of marijuana products on their premises, whether the number of local licenses should be reduced and even whether such businesses should be banned altogether within their borders.

The law is scheduled to go into effect on December 15, 2016, which means that Massachusetts residents will have the right to possess, grow and use limited amounts of marijuana for recreational purposes in just a few weeks.  The law also provides a strict timeline by which the state must take action to implement the remainder of the law.  The governor must appoint the Cannabis Advisory Board by February 1, 2017, the state treasurer must appoint the first members of the Commission by March 1, 2017, the Commission must issue initial regulations by September 15, 2017, and it must begin accepting applications for licenses by October 1, 2017.  The law contemplates the issuance of the first licenses by January 1, 2018.

But even though Question 4 was approved by the voters, the state legislature has the power to make potentially significant changes to the statute by passing legislation that would amend the new law, and lawmakers have already signaled that they may seek to make a variety of changes, including modifying the implementation timeline, raising the excise tax, and adding provisions to help prevent impaired driving and the use of marijuana by children and young adults.

Whether and how Beacon Hill will change the law remains to be seen, but whenever and however the state ends up licensing and regulating marijuana sales, the private use of marijuana by residents in their homes will become legal at the state level in just a matter of weeks.  How does this new law affect employers?  Directly, it does not.  The law specifically provides that it “shall not require an employer to permit or accommodate conduct otherwise allowed by [the law] in the workplace,” and further, that it “shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.”  This means that employers who pre-screen job applicants for marijuana, have drug-free workplace policies that prohibit employees from working under the influence of drugs or alcohol, and who conduct other lawful drug tests of employees may continue their current practices, and need not accommodate an employee’s use of marijuana, even for medicinal purposes and even off-duty.

That being said, employers should be aware that the use of marijuana by employees may increase after December 15, 2016, when the odds of criminal consequences will disappear at the state level.  This means that employers may see a rise in employees being under the influence of the drug at work, positive drug test results, and requests to tolerate off-site use of the drug as a reasonable accommodation for a disability.  Employers who drug test current and prospective employees for positions that are not safety-sensitive should also be aware that they run the risk of being sued for an invasion of privacy under a recent ruling by the Massachusetts Superior Court.  The decision is an outlier, is on appeal, and so far, there has been no actual finding that the drug test at issue in that case did in fact invade the employee’s privacy.  But the Court did refuse to dismiss the claim, which means that, unless the Appeals Court reverses the decision, the employee will have an opportunity to gather evidence and potentially even to present her case to a jury.  At least for now, therefore, the Massachusetts privacy statute may provide employees who fail an otherwise lawful drug test a viable path to a legal remedy.

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