On November 8, 2016, Massachusetts voters approved Question 4 to legalize the possession and recreational use of marijuana. The ballot initiative passed by a 53.6% to 46.4% margin. The law comes into effect quickly: recreational use and possession of marijuana will be legal for adults 21 years old or older on December 15, 2016 while the first license to sell recreational marijuana will be issued January 1, 2018. While the law will create a new legal industry and rules to regulate that industry, it will likely have little direct impact on most Massachusetts employers.
Question 4 and Its Effect on Employers
Question 4 permits an individual to possess up to one ounce of marijuana in public and up to ten ounces at home. An individual may also grow up to 12 marijuana plants in their home. This right to possess and use marijuana is limited to people 21 years old or older. Marijuana use is forbidden in public places and anywhere else that prohibits smoking. The law also creates a Cannabis Control Commission to write rules to regulate the recreational marijuana industry in Massachusetts.
While this new industry is coming quickly to Massachusetts, this new law will have little direct impact on most employers. Section 2(e) within the ballot initiative limits the effect of marijuana legalization in the workplace by explicitly stating that the statute does not require an employer to permit or accommodate marijuana use, possession, or intoxication in the workplace.
Importantly, the new law does nothing to change an employer’s current authority to make and enforce policies restricting the marijuana use of employees. Employers who currently can legally require drug tests of employees may continue to do so. Policies can continue to restrict employees’ marijuana use at work and should cover all aspects of a workplace, including performing off-site duties, driving company vehicles, and attending work-related functions.
Potential Privacy Problems
In light of the passage of Question 4, employers without a drug policy for employees and applicants may want to create one. However, employers need to be cautious when implementing or revising a drug testing policy. Drug testing employees can make employers liable for a violation of an employee’s privacy if the drug testing is not reasonable in relation to the employer’s business and the employee’s job duties.
What is “reasonable” when it comes to drug testing employees? That analysis is fact-dependent, but factors include whether an employer had productivity or safety issues attributable to employee substance use, whether employees have advance notice of a testing program, and whether an employee’s errors could possibly result in harm to health, safety, or national security. Any drug testing policy must have procedural safeguards to protect employees’ privacy.
Privacy concerns have been a consistent issue as employers grapple with increasingly legal marijuana use. In 2012, Massachusetts voters approved a ballot question allowing medical marijuana. Since that law came into effect, one of limited cases addressing an employee’s use of medical marijuana allowed an employer to escape liability for everything except for an employee’s invasion of privacy claim. In that case, an employee who used doctor-prescribed marijuana to treat her Crohn’s disease was terminated for her marijuana use. She sued her employer for disability discrimination, violations of the medical marijuana statute, and invasion of privacy. The Superior Court dismissed most claims of the employee’s claims because marijuana remained illegal federally. The only claim that remained was the employee’s invasion of privacy claim. That claim was based on the premise that the drug test was unreasonable given her job duties and her employer’s business. While the dismissal is being appealed, it appears that employers can terminate an employee for medical marijuana use and avoid any liability, assuming that the drug test of the employee was legal.
With Massachusetts voters legalizing recreational marijuana on the state level, employers do not have to accommodate employee marijuana use. Employers maintain their rights to implement and enforce drug policies, but these polices must be reasonable in relation to the employer’s business and the employee’s duties in order to be legal. If you have any questions about implementing or revising a drug policy, please contact one of Conn Kavanaugh’s employment lawyers for assistance.