You can still fire workers for using marijuana
Kurt Binder
Massachusetts is now one of nine states to permit recreational marijuana use. Under the state marijuana law, an employer is expressly permitted to prohibit employees from using or being under the influence of marijuana in the workplace. Yet, the law does not address whether an employer can regulate employees' lawful use of marijuana outside of the workplace.
With respect to recreational marijuana use, employers may terminate an employee for off-duty and/or off-site recreational marijuana use because Massachusetts provides no statutory protection for such use. Furthermore, it is unlikely any employee claims alleging a violation of a right to privacy would be successful. A Massachusetts federal court has previously denied a right to privacy under circumstances where an employee was terminated for violating a company's non-cigarette smoking policy.
On the other hand, the use of medical marijuana could raise public policy concerns where an employee is discharged for off-duty medical marijuana use. A 2017 Massachusetts Supreme Judicial Court decision sided with an employee's reasonable accommodation claim where the employee had been terminated after testing positive as a result of marijuana use for Crohn's disease.
These considerations raise questions as to how Massachusetts employers can manage employees using recreational marijuana while avoiding legal risks. Massachusetts employers will likely have the right to terminate an employee using recreational marijuana even when consumption occurs off-duty. In order to minimize the risks of a wrongful termination claim, employers should consider policies to make it clear 1) on-the-job marijuana consumption, or being under the influence of marijuana, remains against company policy, and 2) off-duty recreational consumption may result in discipline or termination of employment. If employers wish to include a zero-tolerance drug testing policy, then a policy should clearly define illegal drugs as those banned under federal law (thereby including marijuana) and make it clear the drug test will screen for marijuana.
Conversely, as recreational use becomes more prevalent, talent pool considerations may favor loosening drug testing policies, at least for certain positions. Employers may want to consider whether it makes sense for their business to relax drug policies. With these considerations in mind, employers may choose to eliminate standardized testing policies and rely only upon testing for reasonable suspicion the employee is under the influence at work. Similarly, some employers may limit marijuana testing to safety-sensitive occupations, such as operating heavy machinery.
Employers with concerns about the new law and its effect on workplace procedures and handbook policies should consult with counsel about these important issues.
Kurt Binder is a partner at the Worcester law firm Seder & Chandler, specializing in commercial litigation, employment law and general business practice.
WBJ Web Partners
Most Recent
Most Recent
0 Comments