Can Massachusetts Employers Fire Workers for Off-Duty Marijuana Use?

 

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Complying with marijuana laws and understanding their impact on the workplace is tricky for multistate employers, but even the laws in a single state can be difficult to navigate. In Massachusetts, for instance, medical and recreational marijuana use is legal, but employers can still fire workers who test positive for the substance—in some situations.

Employers and workers alike should keep in mind that no law requires an employer to tolerate on-the-job marijuana use or impairment. But protections for off-duty use may depend on the specific job and the reason an employee consumed cannabis.

We've rounded up the latest news on this topic from SHRM Online and other trusted outlets.

Recreational Marijuana Use Not Protected Yet

Although recreational marijuana use is legal in Massachusetts, no law currently protects employees or job applicants who test positive for the substance, even if they use it outside of work hours. The Boston Globe recently reported on a longtime cook who was described as a model employee and was fired for testing positive for marijuana after cutting his finger and taking a required drug test. "I'm extremely disturbed that a company could or would fire someone for using a drug that's legal in Massachusetts," said Democratic state Sen. Jamie Eldridge. "It's definitely something that the legislature needs to address this session." State lawmakers have introduced a bill that would make it harder for employers to discipline or fire workers who use marijuana off duty—though there would be some exceptions for safety-sensitive positions.

(Boston Globe)

Employers May Need to Accommodate Off-Duty Medical Use

In 2017, the Massachusetts Supreme Judicial Court ruled that a new hire who was fired for testing positive for marijuana could bring a disability discrimination claim under state law. The new hire was a registered medical marijuana patient and the employer didn't discuss any potential accommodations for her off-duty use. The court said that "the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication." Thus, employers should explore reasonable accommodations rather than having zero-tolerance policies, particularly since marijuana tests can't distinguish between current intoxication and off-duty use. 

(SHRM Online)

Nevada and New York City will Soon Protect Many Recreational Users

Starting Jan. 1, 2020, many Nevada employers won't be able to consider new hires' marijuana use. Nevada is the first state to curb the use of pre-employment drug testing for the substance. Lawmakers in New York City approved a similar local law that will also take effect in 2020. Each law will have exceptions for certain industries and safety-sensitive jobs. "Prospective employers don't test for alcohol, so marijuana should be no different," said Jumaane Williams, New York City's public advocate and the sponsor of the city's law. "But in no way does this bill justify individuals going to work under the influence."

(SHRM Online)

Is Marijuana Really Legal?

Marijuana use is still illegal at the federal level, but 33 states have legalized medical marijuana use, and 11 of those states have also legalized recreational use. To make matters more confusing for employers, some state statutes or court decisions protect employees who use medical marijuana under state disability laws and others do not. Here are some of the key legal concepts that may influence how employers approach their policies and practices.

(SHRM Online)

Marijuana Map July 2019.jpg

Quiz: How Do Marijuana Laws Affect the Workplace?

Marijuana use isn't as taboo as it used to be, and employers in some industries are finding that it's hard to attract and retain employees if they test for the substance. But employers in many locations still have some leeway to set their own drug-testing standards and associated policies. Test your knowledge about marijuana laws by taking this true or false quiz.

(SHRM Online)

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