On November 8, 2016, voters in Massachusetts (along with their counterparts in Maine, California, and Nevada) voted to legalize the recreational use of marijuana. This means that recreational marijuana use is now legal in eight states (California, Alaska, Oregon, and Washington already have passed similar measures).

One important caveat to the recent legalization movement is that marijuana is still an illegal drug under the federal Controlled Substances Act. That means that regardless of the new state laws, it is not lawful to use or possess marijuana as a matter of federal law, even in Massachusetts or one of the other seven “legal marijuana” states. While it remains to be seen how aggressively the Trump administration will enforce the federal ban on marijuana, the fact that marijuana is now legal in the Commonwealth of Massachusetts as a matter of state law means that employers should evaluate and potentially adjust their policies and practices to address employee marijuana use.

Parameters of the New Law — Individuals’ Rights to Use Marijuana and Carve-Outs Pertaining to Employers

Under the Massachusetts Regulation and Taxation of Marijuana Act, which went into effect on December 15, 2016, Massachusetts adults over the age of 21 may legally possess, use, purchase, and manufacture up to one ounce of marijuana in public.

The Act does not leave employers completely in the dark, however. It explicitly states that employers are not required to permit or accommodate employees’ use or possession of marijuana in the workplace. Likewise, the Act does not affect an employer’s ability to enact and enforce workplace policies restricting the consumption of marijuana by employees. Accordingly, employers have no obligation to permit marijuana use at the workplace.

Employees’ Off-Duty Marijuana Use

The Act is notably silent on whether employers may limit or regulate employees’ use of marijuana outside of the workplace. In this respect, the Act does not affirmatively require employers to allow employees to use marijuana while off-duty and does not prohibit employers from taking disciplinary action against employees who test positive for marijuana. Additionally, the Act does not prohibit employers from screening job applicants based on marijuana use.

Even though the Act does not prevent employers from enacting policies banning marijuana outside the workplace or disciplining employees for using marijuana while off-duty, employers could potentially be held liable for such actions. For example, employees could potentially bring claims under M.G.L. c. 151B (Massachusetts’ anti-discrimination statute), as well as common law claims like invasion of privacy. Moreover, Massachusetts — like many other states — has legalized the medicinal use of marijuana, thereby leaving an open question of whether disciplining an employee who uses medicinal marijuana outside the workplace or subjecting an employee who uses medicinal marijuana to standard drug testing policies could be construed as disability discrimination or a failure to provide reasonable accommodations to a disabled employee.

Ultimately, some of these uncertainties will be answered over time through regulations and case law, and we will provide updates on further developments in this area.

Next Steps for Employers

Massachusetts employers can continue to institute drug-free workplace policies and take steps to implement those policies. Given the change in the law, however, employers may want to consider changing their policies to permit the use of marijuana outside of work. Employers may also consider amending their drug testing policies to only test for marijuana upon a “reasonable suspicion” that the employee is using or under the influence of marijuana while at work.

Alternatively, some employers may eliminate marijuana drug testing entirely. Regardless of any changes employers make to their policies, the policies should be applied evenly to similarly situated employees. In formulating or amending policies, employers should also tailor their workplace policies to fit their particular industry and workplace — for example, workplaces with acute safety and injury risks will likely implement stricter policies than workplaces that do not face such concerns.

While this article focuses on the Massachusetts Act, similar considerations apply to employers in all states where marijuana use has been legalized. And, as the 2016 election demonstrated, it is likely that the trend toward increased state legalization is accelerating. Accordingly, all employers should be vigilant and ready to review their policies as circumstances warrant.

As a final note, these organizations that are federal contractors or receive federal grant money may be required to maintain a zero tolerance policy towards marijuana use pursuant to the federal Drug-Free Workplace Act.