Legal Recreational Marijuana Use: Does a Positive Test Mean You’re Fired?

by George Georgountzos

Now that the recreational use of marijuana is legal in Massachusetts, employers must adopt new policies to ensure safety and productivity in the workplace while respecting the rights of individuals to consume products that are legal. A recent arbitration action that is working its way through the system outlines the challenges faced in this new reality.

A cafeteria worker in a regional hospital fell at work, breaking her wrist. In such incidents, the hospital had a policy of administering drug tests to ensure employees were not under the influence of alcohol or drugs. In this employee’s case, the test result was positive for marijuana and the employee was fired. The employee admitted using marijuana at home on one of her days off but claimed she was not suffering from any disorientation, intoxication or side effects at the time of her accident.

Employers have the right (if not the obligation) to create a safe environment for its employees and ensure its workforce is capable of delivering services efficiently and productively. Accordingly, employers have long enjoyed the right to ban alcohol and drug use and have even banned smoking in the workplace. These bans have been upheld by Courts, but legal marijuana use presents a novel problem as highlighted in the cafeteria worker’s claim.

The employee’s use of marijuana, now a legal commodity, was done days prior and in the privacy of her home. Her recent use had no effect on her job performance but tetrahydrocannabinol (THC), the chemical responsible for marijuana’s psychological effects, can remain in a user’s system long after the effects have worn off. If the employee had not tested positive for marijuana use, due to the length of time THC can be detected, the employee would not have been fired. In addition, medicinal use of marijuana has been legal in Massachusetts for over six years, and employers have been forced to reasonably accommodate those employees who consume marijuana for medical purposes, as long as such use poses no harm to the workplace or adversely affects the worker’s performance.

Under current law, employers can terminate employees who come to work intoxicated and unable to perform their duties or who pose risks to company property or to their co-workers. While random drug testing is permissible, Massachusetts employers need to reevaluate their policies concerning drug testing in the post-legalized recreational marijuana era. Terminating an employee for using a legal product in his or her own home based on a positive drug test result, but who presents no adverse effects on his or her job performance, may now be deemed unreasonable. The Massachusetts senate is contemplating legislation prohibiting employers from terminating employees for using marijuana legally outside of work even if the results of the test show the presence of THC. Currently, most Massachusetts workers are at-will employees and generally can be terminated at any time for any reason, as long as the termination does not violate discrimination, whistle-blower or other laws.

In the case of the cafeteria worker, the results of the arbitration should provide a hint about whether firing employees who test positive for marijuana use will be a cause for termination. In anticipation of dealing with such issues, employers should adopt policies concerning their drug testing practices and set clear expectations regarding what they deem sufficient grounds for termination.