Legal Marijuana Just Days Away—Are you Modifying Your Drug Testing or Substance Abuse Policies?

by John S. Gannon

Recreational marijuana will become legal in Massachusetts this Thursday, December 15. Last month, Skoler Abbott attorney Erica Flores provided a detailed summary of the new law after it was approved by voters in the Commonwealth. Realistically, retail marijuana dispensaries (aka “pot shops”) will not be around for some time, but home cultivation will be possible right away. Employers are wondering whether and to what extent the new law will impact employment laws and HR policies.

As noted by Erica, the law specifically states that it does not affect the ability of employers to enact and enforce workplace policies restricting employee use of marijuana. Employees are probably unaware of this caveat. If they fail a drug test or show up to work impaired, employers can expect legal use excuses. Therefore, employers who remain committed to enforcing zero tolerance drug testing and/or substance abuse use policies should consider reminding employees—through an internal memo or handbook update—that a zero tolerance company policy still applies to marijuana use.

Now is also a good time to consider whether a zero tolerance policy makes the most sense for your organization. Marijuana use is certain to increase in the Commonwealth, especially when licensed pot shops open for business. Employers should consider whether continued enforcement of a zero tolerance policy will impact employee recruitment and retention efforts. Further, the intersection of medical marijuana and disability discrimination law provides a new avenue for individuals to sue if they are rejected for failing a pre-employment drug test or terminated for off-site medical marijuana use. Fortunately, most courts have ruled in favor of employers when this legal theory has been advanced by employees, as judges are quick to point out that marijuana use (medical or recreational) is still illegal under federal law. In fact, a state court in Massachusetts recently sided with an employer in a similar lawsuit and dismissed a medical marijuana user’s disability discrimination claim when she was rejected for failing a drug test. The employee argued that the employer should have accommodated her disability by turning a blind eye toward her off-site medical marijuana use. The court disagreed, but it did allow a separate invasion of privacy claim to go forward against the employer in that case. Employers should analyze whether their practices are susceptible to attack under an invasion of privacy type of claim. A similar lawsuit was recently filed in Connecticut against Amazon.com and a staffing services provider.

Next week, Erica Flores will be joining Mark Adams with the Employers Association of the NorthEast (EANE) for a webinar entitled Legalization of Marijuana in MA – Will it Impact Your Business? The webinar will take place on Wednesday, December 21, 2016 from 8:30 am to 9:30 am. Click here for more information on the event, including registration details.

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