This past November, voters approved a ballot measure legalizing the possession and recreational use of marijuana. On December 15, the new law went into effect, legalizing recreational use and homegrowing of marijuana plants (up to 12 plants per household). However, the state legislature and the newly formed Cannabis Control Commission have delayed the implementation of marijuana dispensaries and other key parts of the law approved by a 54 to 46 percent margin. This has left Massachusetts businesses largely in the dark on how to proceed with the new legal regime, now that workers are legally permitted to use marijuana.
The law enacted by voters in November states that employers may ban the use of marijuana while an employee is on the job, but that is the extent of the guidance provided to businesses. This lack of established regulations from state and local officials has left businesses in a legal gray area, with many unresolved issues with no clear answers. It is certainly a peculiar situation that Massachusetts employees and employers find themselves, where workers are permitted to use a drug that federal law still classifies on par with cocaine and heroin. Further compounding the uncertainty is the fact that no reliable test for determining whether an individual is currently impaired by cannabis exists. This makes it difficult to enforce a drug-free policy when the active chemical in marijuana, which only impairs the user for a matter of hours, can remain in a user’s blood for weeks following use.
Employers are now dealing with how to enforce workplace drug-free policies, drug testing policies, and complying with the Americans with Disabilities Act. In this time of uncertainty, it may benefit employers in Massachusetts to adopt flexible policies and methods of enforcement, at least until real regulations are enacted and put into place. Some strategies for employers are briefly discussed below:
Workplace Drug-Free Policies
Instead of a strict drug-free workplace policy, employers should consider an “impairment-free workplace” policy that prohibits the use of marijuana any time before or during a work shift which would cause the employee to be impaired at work. An impairment-free office policy tailors the permitted and restricted use more closely to align with an employer’s interest to ensure that its employees are not inebriated on the job, while balancing a worker’s right to engage in legal recreational activity.
Because of the change in law, employers that currently employ a drug test prior to, or during, employment should review their policies and determine whether they should remove marijuana from the testing protocol or scrap their testing altogether. This is especially pertinent in positions that are not dangerous or those that do not include operating vehicles or machinery.
Accommodations under the ADA
A current case on direct appeal to the Massachusetts Supreme Judicial Court may decide whether an employer is required to provide accommodations for medical marijuana use to an employee with a disability in a non-safety sensitive position. Under current law, companies are not required to provide any accommodations for marijuana-related medical reasons. This is now clearly in question, as some argue that the new law manifests a shift in public policy towards marijuana use. This shift in public sentiment may require employers to adopt new methods for dealing with these types of cases.
In any event, Massachusetts employers need to stay current with the rapidly changing laws related to marijuana use and the workplace. They need to proactively communicate their policies clearly to new and current employees. Massachusetts business owners should also undertake a review of their current practices and clearly articulate any changes or modifications to their policies to their workers.
If your Massachusetts business is grappling with how to handle marijuana issues related to your workforce, contact the experienced attorneys at The Jacobs Law to guide you through this thorny and quickly evolving issue.