Green Grass And High Times?

What Employers Should Know About Recreational Marijuana

As of July 1, 2018, Massachusetts became one of nine (9) states that permits recreational marijuana use. However, under the Massachusetts Marijuana Act, an employer is expressly permitted to prohibit employees from using or being under the influence of marijuana in the workplace. Yet, the Act 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 that any employee claims alleging a violation of a right to privacy would be successful. Notably, a Massachusetts federal court has previously denied a right to privacy when an employee was terminated for violating a company’s non-cigarette smoking policy. If there is no privacy right in nicotine use, then it is safe to assume that there would be no privacy interest in recreational marijuana use.

On the other hand, the use of medical marijuana could be considered to raise public policy concerns under certain circumstances where an employee is discharged for off-duty medical marijuana use. In a 2017 Massachusetts Supreme Judicial Court decision, the Court addressed an employee’s reasonable accommodation claim where she had been terminated after testing positive as a result of medical marijuana use for Crohn’s disease. The Court held that although marijuana use is still illegal at the federal level, the public policy of Massachusetts prioritizes accommodating workers with disabilities.

These considerations raise questions as to how Massachusetts employers can manage employees using recreational marijuana while avoiding legal risks. As noted, Massachusetts employers will likely have the right to terminate an employee using recreational marijuana even when that consumption occurs off-duty and/or off-site. However, in order to minimize the risks of a wrongful termination claim, employers should consider policies which make it clear that (a) on-the-job marijuana consumption, or being under the influence of marijuana, remains against company policy, and (b) that off-duty/off-site recreational consumption may also result in discipline or termination of employment. If employers wish to include a drug testing policy, then a zero tolerance policy should clearly define “illegal” drugs as those banned under federal law (thereby including marijuana) and make it clear that the drug test will screen for marijuana.

Conversely, as recreational use becomes more prevalent in Massachusetts, talent pool considerations may favor loosening drug testing policies, at least for certain positions. In other words, some employers may want to consider whether it makes sense for their particular business to relax drug policies as they relate to marijuana. With these considerations in mind, employers may choose to eliminate standardized testing policies and rely only upon testing for “reasonable suspicion” that the employee is under the influence at work. Similarly, some employers may limit marijuana (THC) testing to safety-sensitive occupations, such as public transportation or operating heavy machinery.


Partner, Kurt L. Binder

Mr. Binder’s practice is concentrated in the areas of commercial litigation, employment law, and general business practice. As part of his practice, Mr. Binder acts as outside general counsel for his clients, including both large and small businesses. He regularly consults on matters involving commercial contract drafting and negotiation, employment policies and procedures, and corporate governance. In addition, Mr. Binder has tried cases in state and federal court before both judges and juries. He has also appeared before various state and federal administrative agencies and has participated in the resolution of private sector disputes in both mediation and arbitration.

Mr. Binder is a member of the Massachusetts Bar Association and the Worcester County Bar Association. Mr. Binder carries Martindale-Hubbell’s highest rating of “AV.” Mr. Binder is a fellow of the Litigation Counsel of America, which is an invitation-only trial lawyer honorary society composed of less than one-half of one percent of American lawyers.