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The impact that marijuana legalization will have in the workplace

Originally published by Marshall Halem LLC.

Marijuana became officially legal in Massachusetts starting on December 15th.  We have been fielding a number of questions from our clients about the new marijuana legalization law.  In this article, we provide guidelines for employers on how they can address marijuana use in the workplace.

Employees Can be Fired for Being High at Work
As with alcohol use, employees can be terminated for being intoxicated at work.  If you suspect that an employee’s substance use – of any kind – is affecting their job performance or the safety and productivity of their co-workers, you are well within your rights as an employer to take action against that employee.  Marijuana being legal does not change that.

Companies Can Ban Marijuana at the Workplace
Employers can also adopt policies that prohibit employees from using marijuana while at work, akin to no alcohol policies.  The statute expressly permits employers to ban marijuana at the workplace.  Under the new law, employers can “enact and enforce workplace policies restricting the consumption of marijuana by employees.”  M.G.L. ch. 94G, § 2(e).  We recommend that our clients update their substance use policies to reflect the company’s policy on marijuana.

Companies Can Continue Drug Testing, But May Not Want To
Drug testing policies pose more challenges.  Unlike alcohol, the active chemical in marijuana – THC – can stay in a person’s blood stream for several days.  This means that an employee could smoke pot on Saturday night and still test positive for marijuana on Monday morning.

The new Massachusetts law does not interfere with company drug testing policies.  Companies are still allowed to have zero-tolerance drug policies and to continue to test their employees for marijuana use.

Furthermore, some employee drug testing is required under federal law, particularly for federal contractors.  If you are required to drug test certain employees under federal law, you should continue to do so.

However, beyond these requirements, you may not want to test for marijuana use. Companies should consider whether they need to know what their employees are doing in their free time.  If your employees are not using marijuana at work, you may not want to bring their private life into the workplace.  Unless your employees are working in highly dangerous or sensitive positions, you may want to remove marijuana from drug tests.  If an employee is visibly intoxicated or if an employee’s marijuana use is affecting his or her job performance, you can still discipline them for being intoxicated at work.  By not testing for marijuana use, you avoid the risk of unnecessarily intruding into your employees’ privacy or from finding out things you may prefer not to know.

Medical Marijuana and Disability Discrimination
One open question that could present more difficult issues for employers is medical marijuana.  Can employers fire employees for using medical marijuana outside of work to treat chronic medical conditions?  Currently, the leading case comes out of Colorado, where the state supreme court ruled that employees could be fired for using medical marijuana because marijuana is still illegal under federal law.  Coats v. Dish Network, LLC, 350 P. 3d 849, 852 (Colo. 2015).  Similarly, California has held that the state’s anti-discrimination law does not require employers to accommodate the use of marijuana because it remains illegal under federal law.  Ross v. Raging Wire Telecommc’ns, 174 P. 3d 200, 204 (Cal. 2008).

A similar case is coming to the Massachusetts Supreme Judicial Court.  In Barbuto v. Advantage Sales and Marketing, Civil Action No. 15-02677 (Suffolk Superior Court), an employee was fired for testing positive for marijuana, which she used medicinally to treat her chronic Crohn’s disease.  The employee brought a claim for disability discrimination in violation of M.G.L. c. 151B.  The superior court dismissed the case, but on November 16, 2016, the SJC certified the case for direct appellate review.  It remains to be seen whether Massachusetts will follow Colorado and California or take a different position and find that medical marijuana use is a reasonable accommodation that employers must make for their employees with chronic medical conditions.

TO DO: 
Decide on a marijuana policy and notify your employees.  If you already have a substance use policy in place, amend the policy to expressly include marijuana as needed.  As always, we are happy to answer any questions you may have on this or any other employment law topic.

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