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Massachusetts - Is Your Workplace Ready for Retail Marijuana?

By John S. Gannon - Skoler, Abbott & Presser, P.C.

November 19, 2018

Thanksgiving is this Thursday, but fans of marijuana will be giving thanks a little sooner.  The Massachusetts Cannabis Control Commission recently announced that two retail marijuana shops—one located in Northampton and the other in Leicester–have been approved for retail sales and can open as soon as Tuesday, November 20.  These will be the first two retail “pot shops” to open in the Commonwealth.  Employers should be ready for this development as marijuana use is sure to increase throughout the region.

Questions for employers

The burning question for most employers is whether they can fire or otherwise discipline employees who legally use marijuana for recreational reasons.  The Massachusetts Regulation and Taxation of Marijuana Act – our state law enabling recreational use and sales – answers this question directly.  It states that the law “shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.”  In other words, employers are free to enforce polices that call for discipline if an employee uses marijuana for recreational reasons.  But remember, if an employee is using medical marijuana in connection with a disability, employers may need to tolerate off-site use.

Should we have a policy?

If you are concerned about employee drug use in the workplace, you should have a drug-free workplace policy in your Handbook or practice manual.  In fact, employers that do business with or receive funds from the federal government may actually be required by the Drug-Free Workplace Act of 1988 to have such a policy.

Is our policy strong enough?

If your current policy only prohibits use of “illegal drugs,” and you want to discipline for legal marijuana use, consider updating the policy to make it clear that marijuana use is also a no-no.  True, marijuana is still illegal under federal law, so a policy prohibiting illegal drug use still has teeth.  Still, I could see an employee (or an employee’s advocate) trying to make a case that the “illegal drugs” policy does not apply to legal marijuana use in Massachusetts.

Do you have a reasonable suspicion testing policy?

No drug-free workplace policy is complete without language that calls for a drug test if an employer has reasonable suspicion that the employee is under the influence.  Even if you have such a policy, you need to be sure that your front line supervisors know how to detect suspected drug use and apply the policy.  We recommend reasonable suspicion training for supervisors coupled with a documentation component, such as an Observed Behavior Checklist.

Bottom line

On Tuesday, Massachusetts will become the first state on the east coast to open retail marijuana shops.  Now is as good a time as ever to review your policies and practices related to employee drug use.  While you’re at it, consider doing a full Handbook review that can be rolled out to employees by the start of the New Year.

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