We frequently get inquiries from employees who are unsure of their rights regarding cannabis. Their confusion is understandable, since marijuana is very much in a legal gray area. Although possession of any amount of marijuana is a federal crime, Congress and Justice Department priorities have sharply limited enforcement of federal law against most people who have marijuana only for personal use. Under Massachusetts state law, different statutes authorize medical and recreational sale and use of cannabis. State-licensed dispensaries sell cannabis in cities and towns across Massachusetts for medical purposes and increasingly for non-medical purposes as well. Depending on the situation, employees who use cannabis may or may not have legal protections. This general overview will focus on three areas: drug testing, the use of medical cannabis under state law, and recreational marijuana.
Massachusetts employers may require employees to take drug tests under some circumstances, but the employers must meet specific legal criteria. Under federal and state laws against disability discrimination (the Americans with Disabilities Act and Chapter 151B), an employer may be permitted to require an applicant to undergo a test for illegal drugs after offering the applicant a job, if the test is relevant to the employee’s ability to perform the job and is applied equally to all employees in the same job category. After an employee has been hired, any drug test must be job-related and consistent with business necessity. Because marijuana is illegal for federal purposes but legal under state law, it is unclear whether Massachusetts employers may test for marijuana even if they can test for other drugs; however, if there is a specific federal requirement to test for marijuana, such as for truck drivers, the federal law would govern.
An employer’s drug testing program must also account for employees’ privacy rights. An employer’s business interests (such as the safety of its employees and protection of company property) must be balanced on a case-by-case basis against the employee’s interest in his or her privacy. In Webster v. Motorola, the Supreme Judicial Court held that an employer was permitted to randomly test a salesperson because he had to drive a company vehicle for work, and the employer had an interest in ensuring that the employee was not driving while impaired by drugs or alcohol. However, the same random testing program was not legitimately applied to a technical writer whose work did not implicate the same safety issues. Specific workplace safety concerns, potential danger to the public, and specific regulatory requirements make a testing program more likely to be found valid under the Massachusetts privacy statute.
Massachusetts law gives medical marijuana users some protection in the employment context. For those who have a medical marijuana card and comply with state law concerning the medical use of marijuana, the Supreme Judicial Court gave a clear analysis of the applicable law in Barbuto v. Advantage Sales and Marketing, which we have previously covered. As explained in Barbuto, if an employee uses cannabis off-site under the medical marijuana law, the employer must specifically assess whether that use can be reasonably accommodated, and must make accommodations unless doing so presents an undue hardship. (The law does not require employers to accommodate marijuana use at the workplace.) Such an undue hardship might include an unacceptably significant safety risk, or specific federal laws or regulations (such as the Drug-Free Workplace Act for federal contractors) that might make it illegal for the employer to accommodate off-site use. In the absence of specific hardships, employers are expected to make accommodations as they would for any disability under the law. An employer cannot simply rely on a zero-tolerance drug testing regime, as the employer in Barbuto tried to do, because an exception to the zero-tolerance policy can be (and often will be) a reasonable accommodation. These protections are specific to the medical marijuana law: employees who informally use marijuana for medicinal purposes but do not have a state permit or buy from a medical dispensary may not have the same rights.
There are very few protections for the recreational use of marijuana. While there are laws in some states that protect employees for their off-the-job use of recreational marijuana, Massachusetts does not have such a law; indeed, the recreational marijuana law as it currently stands explicitly does not require employers to accommodate recreational marijuana use. In many ways, recreational marijuana is treated similarly to alcohol in terms of employees’ rights. Both alcoholism and drug addiction are considered disabilities, and employers are not permitted to discriminate against employees on the basis of those conditions. However, casual or recreational drug or alcohol use is not considered a disability and does not have the same protections. Thus, aside from general privacy interests that may come into play, an employer may be permitted to take adverse action against an employee who uses cannabis recreationally, even on his or her own time.
This is a fast-changing and complex area of the law. If you feel your employer has treated you unfairly based on marijuana use, contact us here or call us at 617-742-6020.