MARIJUANA AND YOUR JOB

Smoking Weed and Your Job

 

Fatty, Splif, Weed, Pot, Reefer, Grass, Dope, Ganja, Mary Jane, Skunk, Boom, Chronic, Blunt, Juanita, Ganja, Hot Stick, Jay, Jolly Green, Roach, Primo, Dooby.

No matter what you call it, you can now “fire it up” without being hauled off to jail.  The use of recreational marijuana is just one of the benefits of living in Massachusetts in 2019. In this post, we will only be discussing recreational use, not medical marijuana use.

 

A quick review of how we got here:

  1. November 8th, 2016 voters in Massachusetts approved the recreational use of marijuana.
  2. The Regulation and Taxation of Marijuana Act took effect on December 16th, 2016.
  3. July 1st, 2018 recreational marijuana can be legally sold, taxed and consumed in MA.

In a nutshell:

  • A person 21 years of age or older shall not be arrested, prosecuted, penalized, sanctioned or disqualified under the laws of the Commonwealth
  • You may possess 1 oz. on your person, or have 10 oz. at home 1

You can now legally enjoy a toke in your free time at home, but, how could that affect you at work?

For argument’s sake, let’s keep things simple and agree that the following statements are obvious:

  1. You cannot go to work high
  2. You cannot smoke marijuana while at work
  3. You cannot bring marijuana onto any company property
  4. If you are a Federal Employee, don’t smoke weed, because marijuana is still illegal under federal law and if you are drug tested, you will probably lose your job.

 

The first thing you should know is that “while the Marijuana Act expressly permits employers to prohibit employees from using or being under the influence of marijuana in the workplace, it does not address whether an employer can regulate employee’s lawful use of marijuana off duty. There are no clear cut employee-employers rights in the context of recreational marijuana use. It’s just too early in the process for the courts to weigh in on the topic.” 2

 

So if you like to partake in a little weed from time to time, here are some things you should think about regarding recreational marijuana use and your employment.

“In Massachusetts, there is no express law which prohibits drug testing” 4. However, “an express provision within the recreational marijuana use law provides that employers may enact workplace policies restricting the consumption of marijuana by employees.” 5

That means that your employer “can actually discriminate against you for the things you do outside of work” 3

 

See, this is where it gets tricky. Employers have a few possible ways to drug test candidates to eliminate legal weed smokers.

There are 3 basic ways you can be drug tested for employment purposes:

  1. Pre-employment drug testing:

  • Candidates must be told about the drug test in the JOB POSTING BEFORE they apply for the job
  • They must get a conditional offer letter before they can be tested – this offer is conditioned on the candidate passing the drug test
  • ALL candidates who get a conditional offer must be drug tested. A candidate cannot be singled out in the process

Outcome: If an employer chooses NOT to hire a candidate due to them failing a drug test, there is nothing in the law that prohibits them from doing so. Even though recreational marijuana use is decriminalized in MA, you may still not get the job.

  1. Reasonable suspicion drug testing:

  • If an employer thinks an employee is showing signs of being in possession of, or under the influence of drugs, expect to get tested
  • They will typically refer to their employee handbook where it states what they test for, and many employers will have a zero tolerance policy if any drugs are identified

Outcome: Any violation of the drug test, can result in disciplinary action up to, and including termination.

  1. Random drug testing:

  • Typically done for positions in safety-sensitive roles
  • Employees should be told in advance that in this position there’s a requirement of random drug testing due to the nature of the position

Outcome: Any violation of the drug test, can result in disciplinary action up to, and including termination.

What does this mean for the Massachusetts Construction Industry?

It seems, for now, most contractors have a zero tolerance policy regardless of the legality of recreational marijuana use. I see two main reasons for this.

  1. Safety – for people, process and projects. Construction is one industry where the margin of error must be minimal to reduce the occurrence of injury/accidents.
  2. Business insurance – general liability and workers compensation costs are closely tied to drug testing, results, and ultimately claims. 6

 

Given our industry is so short of proven construction management talent in Massachusetts, it will be interesting to see what, if any, modifications contractors will consider regarding recreational marijuana use regarding hiring and retaining talent.

 

My recommendation to anyone currently employed, check your employee handbook STAT!

 

Regardless of the changes in Massachusetts law, consuming drugs, legal or otherwise, will still be against company policy for many employers.

To ensure they are covered, many employers will expressly state in their employee manuals that recreational marijuana use may result in disciplinary action or termination of employment, with little to no, viable legal claim resulting from termination for employees.

 

So, to wrap this convo up, even though recreational marijuana use in Massachusetts is legal, you could still lose your job over it.

 

Have thoughts, touch base and let us know what you think.  Send us an email.

 

Disclaimer: We are obviously not lawyers and are only sharing this post for informational purposes, so if you have any questions regarding your rights, please discuss with legal counsel.

References:

Image: Still via “Workaholics”

  1. https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXV/Chapter94G/Section7
  2. https://www.healthemploymentandlabor.com/2018/06/29/recreational-marijuana-in-massachusetts-what-should-employers-know/
  3. https://www.vice.com/en_us/article/vdq3em/can-you-get-fired-for-smoking-legal-weed
  4. http://fletchertilton.wiseadmin.biz/1C2194/assets/files/Documents/Delving%20Into%20the%20Weeds-Recreational%20Marijuana.pdf
  5. https://www.healthemploymentandlabor.com/2018/06/29/recreational-marijuana-in-massachusetts-what-should-employers-know/
  6. https://www.constructiondive.com/news/high-stakes-state-cannabis-laws-make-contractors-obligations-hazy/548127/
  7. https://www.medicalnewstoday.com/articles/324315.php