Among the ballot questions posed this Election Day, November 8, Question 4 asks voters to decide whether to legalize marijuana (and to regulate it similar to alcoholic beverages). While Massachusetts has permitted medical marijuana since 2013, legalized marijuana raises a number of different questions. Among the most important of these is: how would legalized marijuana impact the workplace?
To the extent the proposed legislation discusses employer’s ability to prohibit marijuana use, it states:
“This chapter shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.” Section 2 (e).
On its face, the law makes clear that employers are still free to prohibit the use of marijuana while at the workplace. Some employers are even required to prohibit marijuana use. For example, Federal contractors and employers who receive federal grant money may be regulated by the federal Drug Free Workplace Act, which requires those employers to adopt a zero tolerance policy at their workplaces, and requires the adoption of other activities aimed at maintaining a drug free workplace. Similarly, many employers with workers in safety-sensitive positions, including employers of commercial drivers, will want to adopt comprehensive drug policies that make clear that marijuana is not permitted onsite.
For employees, it is important to be familiar with whatever drug policies the employer has in place. Recreational marijuana users do not have the same theoretical protections that extend to individuals who use marijuana for medicinal purposes, who may have protection under state anti-discrimination laws. Unlike other states to enact marijuana legislation, Massachusetts does not have a provision that prohibits employers from terminating employees who engage in lawful conduct outside of the workplace.
The language proposed by Question 4 is silent about drug testing in the workplace. It is likely that Massachusetts privacy laws will continue to limit an employer’s ability to drug test employees. In general, Massachusetts privacy laws already limit private sector employers’ ability to administer random drug testing, and prevent public sector employers from administering drug tests unless the employer has probable cause.