September 18, 2017

Treat marijuana like alcohol

Erica E. Flores

Whether you agree with the new law, marijuana is going public in Massachusetts. The Cannabis Control Commission has been appointed, regulations governing implementation of the new law are being drafted and pot shops are expected to start opening their doors next July.

Despite the drug's increasing acceptance, it remains illegal under federal law, and creates some uncertainty for Massachusetts employers. Can they continue to screen job applicants for marijuana? And can they prohibit even the medical use of marijuana by employees? Until recently, the answer to both of these questions was yes. But like the laws themselves, the way our laws are interpreted and applied is subject to change by the courts and, in a recent ruling, the Massachusetts Supreme Judicial Court imposed new restrictions on employers.

Employers can still prohibit on-site use of marijuana and can continue to discipline employees who are caught working under the influence, but employers are now legally required to tolerate the off-site use of medical marijuana by disabled employees as an accommodation for their disability unless there is an equally effective alternative or the employer can demonstrate the accommodation would be an undue hardship on its business. Additionally, based on a Superior Court ruling last year, employers who require job applicants to take a pre-employment drug test for a non-safety-sensitive job risk liability for violating their privacy.

Employers can take a compliance-driven approach: They can re-evaluate their drug testing policies and consider eliminating drug screens for jobs that don't involve safety concerns; adopt new accommodation policies and practices governing employee use of medical marijuana; design a process for determining whether a disabled employee has an equally effective alternative to marijuana; evaluate whether and when accommodating off-site marijuana use may present an unacceptable safety risk, conflict with a contractual obligation, or otherwise create an undue hardship; and provide training for personnel to apply these policies. But for employers who are not particularly concerned about the off-duty use of marijuana, consider a less burdensome approach.

Why shouldn't employers treat marijuana like alcohol when it comes to their workforce? If properly written and enforced, policies forbidding employees from being under the influence of drugs and alcohol while on duty and that allow employers to test employees based on a reasonable suspicion that they are under the influence on the job may adequately protect their business from safety risks. Yes, employers who choose this path would have to accept their employees might smoke a joint for fun on their couch in the evening or eat pot brownies around a campfire over the weekend. But unless they have a really good reason to care about such off-duty conduct, treating marijuana like alcohol could save them a great deal of time and money.

Erica E. Flores is an associate at Worcester law firm Skoler, Abbott & Presser, P.C.


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