12/15/16 Massachusetts Recreational Marijuana Legalization and Your Workplace
On December 15, 2016, the recreational use of marijuana becomes legalized in Massachusetts. Under the new law, an individual who is 21 years of age 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. In addition, under the law, marijuana use is forbidden in public places or anywhere else smoking is prohibited.
While there is "talk" of postponing certain parts of the law, the reality is employers need to be prepared for how this may affect their workplace next week. It is important to note that the statute includes an employment provision which states: "This chapter shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees."
What To Do Now:
Employers can continue their drug-free workplace practices. However, employers need to ensure that they have an updated Substance Misuse policy and the appropriate language in their Employee Handbooks which clearly restricts the use of drugs that are illegal and also drugs which are legal in the workplace.
Be consistent on your enforcement of your policies and be aware that your decisions may be subject to legal challenge based on discrimination laws and an individual's privacy rights. The law has not stated that employers must allow off-duty recreational or medical use of marijuana, or that employers cannot fire employees who test positive for marijuana, or refuse to hire an applicant because of marijuana use. It does not state that employees or applicants cannot sue employers who take adverse action against them because of marijuana use and it does not state that employers are subject to penalties for taking adverse action against employees or applicants because of marijuana use. We do not know whether an employer might be challenged regarding their drug testing policy, as generally available testing methods do not effectively evaluate whether an employee is presently under the influence of marijuana.
As with the implementation of other laws, employers will need to see how the courts interpret the law when an employee files a discrimination charge.
For now, update your policies and handbook, and educate your managers and supervisors on this new law.
Any questions, please contact Lauren Brenner at 617-614-1271 or firstname.lastname@example.org.