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Wednesday, March 20, 2019

Marijuana in the Workplace

Massachusetts voted to legalize medical marijuana in 2012 and voted to legalize recreational pot in 2016.  In November of 2018, the first recreational marijuana store opened in Massachusetts.  But what does the legalization of marijuana in the Commonwealth mean in terms of your employment?  Basically, just because marijuana is legal, that does not mean you cannot lose your job if you use it.

The legislation connecting legalized marijuana and employment law is still evolving, but it is becoming a more and more predominate legal question, both from the employer side and the employee side. 

Recreational Marijuana

As is almost always the case with everything in the law, there are exceptions, but in general, using recreational marijuana can cost an employee his or her job in the Commonwealth of Massachusetts.  Massachusetts, unlike some other states, has no specific laws restricting the ability of private employers to conduct drug tests, beyond the basic requirements that any drug testing policies be nondiscriminatory and clearly spelled out to employees.  If an employee consented to random drug testing at the outset of his or her employment, and that drug test comes back positive for legal recreational marijuana, that employment can legally be terminated (assuming the employer has the proper policies for drug testing and use in place).


Think of it this way: drinking alcohol is legal.  However, if the employer has a policy forbidding intoxication while at the job, the employer would have the right to terminate an employee who came to work intoxicated.  So while the employee enjoys the protection of the law in his or her right to consume alcohol, that has to be balanced with the employer's right to maintain standards and guidelines at work.

As traces of marijuana can remain in the body, on average, between three and four days, this raises a serious issue for recreational marijuana users whose employer utilizes random drug testing.  That is why it is very important to have a clear understanding with your employer about the expectations of employment and the potential penalties of marijuana usage.  If an employer has a drug free policy and/or a random drug testing policy that you consent to, it may be the safest option to avoid recreational marijuana to best protect your job.  Alternatively, if the employer does not make its expectations clear, then it may be more difficult for an employer to terminate an employee due to legal marijuana usage.


Medical Marijuana

The issue is a bit more complicated for employers when it comes to employees using medical marijuana.  Generally speaking, if an employee has a medical marijuana card, it is much harder to terminate them for using marijuana.  In fact, Massachusetts Courts have held that terminating an employee for medical marijuana can be akin to handicapped discrimination.  In the matter of Barbuto v. Advantage Sales and Marketing, LLC, the Supreme Judicial Court issued a unanimous ruling allowing medical marijuana users to assert claims for handicapped discrimination under the Massachusetts Fair Employment Practices Act.  However, this Court  decision also held that the Massachusetts Act for the Humanitarian Medical Use of Marijuana (the Massachusetts Medical Marijuana Act) does not provide an implied, private right of action by employees against employers.  The risk is significant for employers in deciding whether or not to terminate an employee who uses medical marijuana.

So what's the solution?  The best thing for both the employer and employee is to have a very clear understanding from the outset regarding whether or not an employee will be able to perform the duties of his or her job while using medical marijuana.  Employers, it is best to address this issue head on by updating your current employee handbook (and if you do not have an employee handbook, that should quickly be made priority number one).  There may be reasonable accommodations for employees with medical marijuana licenses, or there may be alternative medications that can be used to treat the medical issues.

If you have any questions about employment law or your rights, please feel free to contact the Law Offices of Samuel S. Reidy for a free consultation.

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