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Dealing with Employee Marijuana Use


Marijuana has been a very hot topic lately, with various states passing laws decriminalizing recreational use. Further, this latest trend has followed on the heels of various laws allowing for the medical use of marijuana. And yet, through the passing of both phases of legalization, the federal government has maintained marijuana as a Schedule I narcotic, keeping possession of it illegal. Unfortunately, employers are put in a bind, and retaining the services of an employment law attorney can help fight off any unwanted legal challenges. The illegality of marijuana, coupled with the need to not have employees under its influence, must be balanced against the ability the rights of an employee. Recently, a federal judge ruled that a Connecticut nursing home violated an anti-discrimination provision of Connecticut’s medical marijuana law when it rescinded an offer of employment. A discussion of Massachusetts’ cannabis laws, as well as some tips for employers to follow, will follow below.

Cannabis in Massachusetts

In 2018, Massachusetts became the ninth state to legalize marijuana for recreational purposes. Additionally, Massachusetts is one of 29 states that allow for the medical use of marijuana, with 17 other states allowing for low-dosage marijuana products to be used for medical purposes. Further, Massachusetts law allows an employer to prohibit employees from using or being under the influence of marijuana while at the workplace, but the law does not directly address whether an employer can regulate lawful marijuana use while the employee is not “on the clock.”

Additionally, the Massachusetts Supreme Judicial Court recently ruled that a company wrongly fired a worker after her first day on the job after she tested positive for marijuana, which she used under the Commonwealth’s medical cannabis law to treat her Crohn’s disease. In this case, the employee informed the company prior to hiring that she used medical marijuana, but that she would not consume it while at the workplace. It is important to note that this case did hinge on medical, as opposed to recreational, use of marijuana.

It should be also noted that Massachusetts does not provide any protection for lawful, off-duty conduct by an employee. Thus, for example, a Massachusetts employer can terminate an individual who drinks while off-duty.

Managing Employees Using Cannabis

Since the law is unclear in the context of recreational marijuana, many believe that employers will be able to terminate or regulate against recreational marijuana use among their employees, even if the use occurred while off-duty. In this case, the ability of employers to do so rests on the fact that they can terminate inebriated workers, even if the drinking occurred after hours. However, to reduce the possibility of a claim for wrongful termination, employers should consider establishing the following protocols:

  • If an employer wishes to not hire, or terminate, an individual for marijuana use, the employer should make it clear, and in writing, that such is the policy, and that any test will, in fact, test for marijuana. Additionally, the employer should clearly indicate that an employee will be terminated for the use of any narcotic that is banned under federal, state, or local law.
  • If an employer has a position that is sensitive and requires complete sobriety from any mood-altering substance, it should state that fact in an employee handbook, and during the hiring process. The same would apply to an employee who would be hired for a highly-regulated position.
  • Company policies should be clear marijuana consumption, while on the job, or being under the influence of marijuana remains against company policy.

Seek Legal Advice

If you are responsible for human resources at your place of employment, or if you own a company, and are curious (or confused) about what you can and cannot do with regard to marijuana use among your employees, contact the employment attorneys at Leontire & Associates, P.C. as soon as possible. We have experience in various aspects of employment law, including the complex aspects of federal and state drug workplace law. We will work to strategize a compliant policy for your company to obtain the best possible workforce. Contact our Boston office today.


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