Legislature Delays Marijuana Sales, But Employers Should Not Delay In Evaluating Existing Drug Policies

by Susan G. Fentin

How time flies when you’re having fun!  It was only four years ago that Massachusetts voters approved a referendum question that allowed individuals to obtain prescriptions for medical marijuana.  Then last November, voters approved the recreational use of marijuana.  Since December 15, 2016, individuals in Massachusetts have had the right to possess, grow, and use limited amounts of marijuana for recreational purposes.  And up until last week, we expected retail pot sales to begin by around January 1, 2018.

The initial law created a Cannabis Control Commission (CCC) to regulate retail sales of marijuana and required the state treasurer to appoint members of the new CCC by March 1, 2017, who would have until September 15, 2017 to issue regulations governing the retail sale of marijuana.  Hence, the expected retail “grand opening” date of January 1, 2018.

Last week, however, Governor Baker signed a bill that delays this timeline by six months – now, CCC members must be appointed by September 2017, and the deadline for the CCC to issue its regulations has been moved to March 15, 2018.  This means the new target date for the opening of retail marijuana establishments is July 1, 2018.

Despite this delay in the sale of recreational marijuana, employers in the Commonwealth are already faced with what to do with a workforce that could be legally using marijuana on a regular basis and how to handle the possible increase in positive drug tests for applicants.

Indeed, one of my clients called me a week ago concerned that her company’s pre-employment drug testing policies might result in increased difficulty filling vacant positions.   And that’s a legitimate fear.  After all, if individuals could test positive for their weekend use of alcohol, hardly anyone would pass a Monday morning test, especially during the holiday season.  So what does the recreational use of marijuana mean for Massachusetts employers?

Let’s start with a brief review of drug testing law in Massachusetts.  Massachusetts permits three circumstances when an employer can ask an individual to take a drug test:  pre-employment, reasonable suspicion, and random testing for safety-sensitive positions.  The restrictions on drug testing come from the courts’ efforts to ensure that employers don’t violate an individual’s privacy rights without good reason.  An individual has a high expectation of privacy in the contents of his/her bodily fluids, so in order to allow an employer to violate those privacy rights, either the employer has to have a really good reason, or the employee has to waive his/her expectation of privacy.   And Massachusetts has a privacy rights statute, Mass. Gen. L. Ch. 214, s. 1B, which protects individuals from unwarranted invasion of their privacy.  This statute could complicate an employer’s ability to drug test current employees if the employer doesn’t proceed carefully.

In the application context, individuals are not forced to apply for a job if they are told up front that a positive drug test will disqualify them from employment; they can just walk away.  So if they consent to the test, they are basically waiving their privacy rights.  In the case of drug testing current employees, if an employer has a reasonable suspicion that the employee is working under the influence, the employer’s interests in a safe and substance-free work environment will trump the individual’s privacy rights, so long as the suspicion is based on actual observation or specific information.

Another way to help avoid violating employees’ privacy rights is to lower their expectations of privacy by implementing a drug testing policy.  After all, if employees are told in advance that their use of drugs or alcohol could lead to a drug test, they are using those substances at their own risk.  Similarly, if employees work in a safety-sensitive position, such as working with dangerous equipment or driving a fork lift for example, the employer’s interest in ensuring employee safety will outweigh the employee’s privacy interests.  Indeed, safety-sensitive positions are the only way an employer can randomly drug test its employees.

So what options do employers have?

Employers that are truly concerned that drug testing applicants will lead to serious problems filling vacant positions can dispense with pre-employment drug testing for marijuana or eliminate pre-employment drug testing for all substances.  That doesn’t mean that employers will have to tolerate employees smoking (or otherwise consuming) weed on the job, whether for medicinal or recreational purposes (both statutes make that clear).  The recreational use 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, whether for medicinal purposes or off-duty.

And it also doesn’t mean that employers will need to ignore someone who appears to be “high” on any substance, whether legal or illegal.  Testing is still permissible.  But experienced labor and employment attorneys recommend proceeding carefully.  The first step for employers who want to continue to test will be to ensure that they have a legally-compliant drug testing policy, maybe one that includes a last chance agreement for employees who test positive but who want to enter rehab.  And employers who want to test for reasonable suspicion are well-advised to have an observed behavior checklist that specifies the specific reasons why they think the employee is under the influence, such as slurred speech, stumbling, bloodshot eyes, or any other indication that the employee’s behavior could be affected by drug or alcohol use.  (Note: Repeated trips to the vending machines for Cheetos is probably not a reliable indicator!)   Employers who have safety-sensitive positions should arrange for a testing facility to manage the random nature of a random drug testing program:  It’s easier to avoid an accusation that the employer is targeting a particular individual if the selection for testing is managed by an independent third party.

What if the test comes back positive?

So far, employers who subject employees or applicants to drug screens are still permitted to terminate or refuse to hire if the individual tests positive for marijuana, even now that the drug is legal in Massachusetts.  So long as marijuana is still illegal under federal law, courts across the country, including Massachusetts, have ruled that employers who test employees for marijuana can take action against an employee who tests positive.  That being said, employers should be aware that the use of marijuana by employees may be increasing now that the growth, use and possession of marijuana has become legal. This means that employers may see a rise in employees “under the influence” 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, Barbuto v. Advantage Sales & Marketing, Inc.  The decision is an outlier, has been appealed, and so far, there has been no actual finding that the drug test in that case invaded the employee’s privacy.  But even though the court dismissed the employee’s claims under the Medical Marijuana statute, the court allowed the employee’s privacy rights claim to go forward.  In Ms. Barbuto’s case, there was no reasonable suspicion that her use of medical marijuana impaired her ability to perform her job; she worked for a day without incident before her pre-employment drug test came back positive, resulting in her termination.  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 based on her claim that her termination for use of medical marijuana violated her privacy rights.

Of course, one problem for employers is that the operative chemical in marijuana, THC, stays in the employee’s system long after ingestion.  That means that a good employee or potential applicant can legally smoke a joint on a Saturday night and still test positive for THC on the following Monday.  As marijuana use becomes increasingly legal across the country, enterprising drug testing companies may come up with affordable tests that measure the amount of THC in an employee’s system, so employers could take action if an employee’s level of that chemical exceeds some reasonable standard.   There are other problems here, however:  One employee’s tolerance for marijuana may be significantly lower or higher than another employee’s tolerance, so measuring the level of THC in the employees’ systems might not be a reliable indicator of inebriation.  But so far, it’s legal to test and legal to terminate or refuse to hire, so long as the employer follows the rules. Employers with questions about implementing a drug testing policy for their company should consult with experienced labor and employment counsel.

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