Massachusetts: Employers’ Rights Under Recreational Marijuana Law May Soon Go up in Smoke

By Amelia J. Holstrom - Skoler, Abbott & Presser, P.C.

December 27, 2018

On November 20, 2018, the first two recreational marijuana shops (“pot shops”) – one in Leicester and one in Northampton – opened in Massachusetts.  Since, their success has been covered by the media, including tales of hours-long wait times, license plates from states up and down the east coast lining the parking lots, and pictures of Northampton’s mayor making the first “historic” purchase at the Northampton dispensary.  The mayor’s receipt even found its way to Twitter, although he said he had no plans to consume the product.  (For those keeping score, the cannabis-infused dark chocolate bar purchased by the mayor for $20 carried a “Local Marijuana Tax” of $.60 and a “Marijuana Excise Tax” of $2.15, in addition to regular state sales tax.) Preliminary sales data suggests these stores brought in $2.6 million in the second week of sales, following a first week of sales that topped $2.2 million even with a break for the Thanksgiving holiday.

When the shops opened, the burning question for most employers was whether they could fire or otherwise discipline employees who legally use recreational marijuana.  As discussed in an earlier blog post, the answer, at least for now, is yes.  But recently proposed legislation may change that.

Senator Jason Lewis has drafted legislation that would prohibit an employer from refusing to hire, disciplining, discharging, or imposing any other penalty on an employee who uses recreational marijuana on his or her own time.  The draft law would still allow employers to take action against employees who report to work under the influence of marijuana or use marijuana while working, and there is also a carve out for employers covered by federal law that would permit an employer to take an adverse action if it would “imminently lose a monetary or licensing related benefit under federal law or regulations” if an employee used recreational marijuana outside of work.

In short, if the bill passes, employers in Massachusetts who are not subject to any federal drug-free workplace requirements will not be able to take action against employees who use recreational marijuana on their own time and are not under the influence at work.  And, even though employers could still penalize an employee for reporting to working under the influence, without any available drug testing to determine whether someone is under the influence at a specific moment, employers will have to have objective evidence that someone is impaired at work in order to penalize an employee.

According to Senator Lewis’ communications director, Senator Lewis intends to submit the bill for consideration before January 18, 2019.  Employers who oppose the bill should contact their local legislators to discuss their concerns.