Laws permitting the medicinal use of marijuana were enacted in Massachusetts in 2012 and on July 1, 2018, recreational marijuana was legalized. The Commonwealth’s evolving law governing marijuana usage presents profound challenges for Massachusetts employers seeking to protect their customers, employees and themselves. This article will briefly examine some of the current trends in marijuana laws, highlight employers’ rights and duties to address marijuana use in the workplace and provide helpful hints for employers to craft policies that address marijuana use among employees.The legalization of recreational marijuana started in 2016 with a ballot initiative by Massachusetts voters. The Regulation and Taxation of Marijuana Act, M.G.L.c.94G (referred to as the “Marijuana Act”), took effect on December 15, 2016 and beginning July 1, 2018 recreational marijuana could be legally sold, taxed and consumed in Massachusetts.

The Marijuana Act expressly permits employers to prohibit and/or restrict employees from using or being under the influence of marijuana in the workplace. However, the Act does not address whether an employer may regulate employees’ lawful use of marijuana off-duty. This distinction has caused considerable confusion and anxiety among employers seeking to keep their workplace rules and regulations updated and enforceable.

Although the marijuana usage law is still evolving and many gray areas need to be clarified by the courts, certain general principles for employers who seek to regulate their employees’ marijuana usage, both on-the-job and off-duty, appear to be discernible through the “smoke” created by enacted legislation and recent case law.

As a general principle, it appears to remain clear that employers may terminate an employee for off-duty and/or off-site recreational marijuana use, should they choose to adopt such policies. This is because Massachusetts, unlike a number of other states, has no statutory protection for employees’ lawful off-duty conduct, such as for example, smoking cigarettes.

An employer may also prohibit and/or restrict the consumption of marijuana in the workplace and may prohibit employees from using or being under the influence of marijuana while on the job.

However, a recent decision by the Supreme Judicial Court of Massachusetts has provided employers with an important caveat to this general rule, at least concerning cases involving a disabled employee’s off-duty use of prescribed medical marijuana.

The case involved a lawsuit brought by a woman who had been hired to work for an advertising agency, contingent upon her passing a mandatory drug test. The company had a strict, zero-tolerance policy concerning marijuana usage by employees. The newly-hired employee notified her supervisor that she used lawfully prescribed marijuana to treat her Crohn’s Disease, and that as a result, she would test positive. The supervisor informed the employee that this should not be a problem. At the end of her first day on the job, the employee’s drug test came back positive and she was terminated. The terminated employee then brought a lawsuit against the employer claiming that she had been wrongfully terminated. The employer sought to dismiss the terminated employee’s claims and the case made its way to the highest court in Massachusetts. That Court addressed the unlawful termination claim and articulated the test that will be applied going forward to employers facing such claims. The Court ruled that where an employer’s drug policy prohibits the use of marijuana and a qualified, handicapped employee requests an accommodation to use medical marijuana, the employer has an obligation to (1) participate in an “interactive process” and (2) provide a reasonable accommodation, unless such an accommodation would impose an undue hardship on the employer’s business. The Court described the “interactive process” that an employer must participate in as exploring a reasonable accommodation, if the employee can prove a reasonable accommodation existed that would have enabled the employee to perform the job’s essential functions.

Employers should note that this case involved the use of medical marijuana and nothing in the Court’s ruling requires employers to tolerate the recreational use of marijuana by an employee.

Some steps employers may wish to consider when developing regulations for employees while avoiding legal risks that employees may bring a viable claim resulting from termination of employment, or rescission from an offer of employment, due to a positive drug test include:

• Employers that adapt and continue to enforce “zero-tolerance” policies and decline to hire or choose to terminate individuals for marijuana use should articulate to employees (in employee handbooks, regulations etc.) that they will be drug tested and that the test will screen for marijuana. Employers must clearly indicate to employees they may be terminated for illegal drug use and must clearly define “illegal” drugs as those banned under federal, state or local law to avoid conflicts regarding marijuana’s legal status in Massachusetts (although marijuana is now legal in Massachusetts, its use is still illegal under federal law).
• Drug testing policies should make clear that on-the-job marijuana consumption or being under the influence of marijuana is, and remains, against company policy.
• Employers wishing to prohibit off-duty or off-site recreational consumption should expressly state that such conduct may result in discipline or termination of employment.

Massachusetts law currently permits pre-employment drug screening for any reason, as long as it is non-discriminatory.