Now that Massachusetts has legalized the use of marijuana for medicinal and limited recreational purposes, how should employers in the Commonwealth deal with worker use of marijuana? Here are three things any employer should be aware of about marijuana use in the workplace.
1. Employers can prohibit employees from reporting to work or performing work under the influence of marijuana, even if they cannot control the use of recreational marijuana outside of work.
However, detecting the current use of marijuana can pose a challenge, since cannabis-related substances may remain in an employee’s system for more than 20 days.
2. Although the medical marijuana law in Massachusetts allows employers to prohibit use in the workplace, for medical marijuana used in accordance with a valid prescription from a healthcare provider, employers must engage in an interactive dialogue to determine whether the lawful medicinal use is a reasonable accommodation of the employee’s disability.
In the recent case of Barbuto v. Advantage Sales and Marketing, LLC, the Massachusetts Supreme Judicial Court rejected the employer’s defense that the use of medical marijuana in the workplace is a facially unreasonable accommodation because such use is still a crime under federal law. Rather, the SJC ruled that, under Massachusetts law, no person shall be denied “any right or privilege” on the basis of his or her medical marijuana use, even if such use may constitute a federal crime. Not all states in which medicinal and/or recreational marijuana use has been legalized reach the same conclusion. In fact, in states such as Colorado and Connecticut, the use of medical marijuana – though legal under each state’s laws – could be prohibited by the employer, without a reasonable accommodation analysis, because any use of marijuana is illegal under federal law.
3. Drug-testing employees for cannabis products is still permitted.
Employers who conduct drug tests that include testing for cannabis products may want to reconsider how to handle results that come back positive for marijuana usage. From a legal perspective, if such use is recreational, the employer can still rescind a conditional offer to a job candidate, and can terminate an existing employee, based on the positive test result. From a practical standpoint, however, employers need to assess whether such a test is worthwhile. For example, like alcohol, if an employee simply passes the drug test and then uses marijuana recreationally after work hours, an employer may not be aware of, and cannot prohibit, the after-hours usage of marijuana. So how will the employer know about the after-hours usage? It may be best to conduct drug tests where an employee’s job impacts the safety of others, and train managers to identify employee conduct that may indicate an employee is under the influence of drugs or alcohol, in violation of the employer’s policy.
Although the law allows for legal use of marijuana in some circumstances, and allows employers to prohibit employee use of marijuana at work in most circumstances, like most employment laws, employers should consider having a clear workplace policy about marijuana use, detection, and discipline, and train managers on how best to implement and enforce the policy.