On November 8, 2016, Massachusetts voted in favor of legalizing the possession and use of marijuana for recreational purposes, joining a growing number of states that have passed similar laws. This means that most employers will have to address employee use of marijuana in the workplace.
Under the new law, an individual who is 21 or older may possess for personal use up to 1 ounce of marijuana in public, and up to 10 ounces at home. The law also allows the possession for personal use of up to 6 marijuana plants per person, with a limit of 12 marijuana plants per household. Under the law, marijuana use is forbidden in public places or anywhere else smoking is prohibited.
Employers remain free to establish drug-free workplaces. In fact, marijuana is still classified as a Schedule I substance under the Federal Controlled Substances Act, and thus illegal to possess or use under federal law. This fact is particularly important for federal contractors/vendors to be mindful of when developing a policy.
For all other employers, since Massachusetts now permits use of marijuana for both medical and recreational purposes, a thorough review of drug use and testing policies is in order. Employers may want to consider limited or scaled back drug testing policies that focus more on reasonable suspicion or use in the workplace, or no testing for marijuana at all. For employers that do test for marijuana, a review of the actual tests administered may be warranted, since true and accurate determination of marijuana usage is difficult to determine through standard drug testing tools, due to certain chemicals remaining in the body for a long period of time.
For those employers with workplaces that have heightened safety and injury concerns, drafting appropriate policies regarding use and testing are extremely important. The law includes certain built-in protection for employers to address these concerns: for example, the law does not require employers to permit employees to work under the influence of marijuana. Also, as drafted, the law does not state that employers must allow off-duty recreational or medical use of marijuana; it does not state that employers cannot fire employees who test positive for marijuana or refuse to hire an applicant because of marijuana uses with other employment policies.
However, as with all employee policies, employers should consult with legal counsel to review and discuss implementing appropriate drug related policies.