The passing of Question 4 in 2016—which essentially legalized marijuana for recreational use by persons aged 21+ (with certain provisions) in Massachusetts—brings up a number of questions and concerns for employers, such as:

• Can employers enforce a “no marijuana” policy during the workday if employees are not on company property?
• What about employees consuming edibles during their lunch break?
• What if an employee requests medical accommodations regarding marijuana?

The bottom line: employers may enact and enforce workplace policies which limit employees’ marijuana consumption, similar to policies that limit alcohol consumption.

That being said, all policies and employee handbooks must be updated with very specific language that details these rules and regulations. There must be no ‘gray areas’ or room for interpretation. Establishing written policies and procedures helps avoid costly disputes in the workplace.

It’s also important to note the limitation of testing methods and the implicit gray area of currently-accessible drug testing. If an employee tests positively for marijuana, it does not necessarily imply they are or were incapacitated or impaired, as THC (the tested psychoactive ingredient in marijuana) remains in the body for days to weeks. In many cases it’s a higher priority to focus on an employee’s behavior and the reminder that it remains against policy to imbibe while at work or to work while impaired.

If you’d like to know more of the specifics, contact us for our Marijuana in the Workplace Employer’s Primer with more specific information regarding marijuana and employment law.

We work with employers to ensure their HR policies and practices are clear and applied consistently. We also help employers establish new policies as needed. To arrange for a complimentary HR compliance review, call us at (508)785-4950 or email us!