With the legalization of marijuana, many of our clients have asked us how it applies to their drug policies and reasonable suspicion training. Marijuana can be treated similarly to alcohol in these circumstances. While an employee who is over 21 years of age may use marijuana recreationally at home, an employer has the authority to prohibit the use of it while at work. Having a clearly defined drug and alcohol policy is incredibly important. Communicating the policy to your employees, and having reasonable suspicion training for your managers is equally so.

Massachusetts Law on Marijuana

Understanding what is legal in Massachusetts with regard to the use of marijuana is important as you review your company policies. Massachusetts residents who are 21 years or over, may possess one ounce of marijuana (flowers) legally. This increases to 10 ounces and six plants in the home. Marijuana concentrate (such as cannabis oil) will be similarly legal but only in quantities of 5 grams or less. Any amounts or activities beyond the limits set forth in the Massachusetts law is still illegal, for instance consuming marijuana in a public or prohibited area remains illegal.

For persons between the ages of 18 and 21, possession of less than one ounce of marijuana is not fully legalized by Question 4 (the ballot question legalizing recreational use of marijuana), but remains decriminalized as it has been since 2008. In these circumstances, possession of less than one ounce of marijuana by persons aged 18-21 is a civil offense, and will warrant a civil citation with a penalty of $100.

The Massachusetts General Laws have not been revised to reflect the voters’ passing of the ballot question. However, they do give us some good insight as to how the Commonwealth handles the sometimes murky space between state law and employer rights and responsibilities in the workplace.

Take the case of an employee who was denied unemployment benefits by the Department of Unemployment Assistants (DUA) after his employer appealed the original award of benefits given on January 25, 2016. The appeal caused the Board of Review to examine the case to decide whether the employee was discharged (benefits awarded) or quit (no benefits awarded). As a result of a positive drug test, the employee lost his CDL, and his employer was required to remove him from his driving duties. The Board of Review decided in favor of the employer’s appeal, citing that since the employee had signed the written drug & alcohol policy he therefore knew that under DOT regulations random drug tests were a condition of having his CDL, and that consuming marijuana would jeopardize his license, that the employee had effectively quit his job.

Some things to note about this case are:

  1. DOT regulations do not require the termination of an employee who tests positive for marijuana.
  2. DOT regulations DO require that an employee who tests positive for marijuana be removed from driving duties.
  3. The employee was randomly selected to take the drug test.
  4. The employee had received the written drug and alcohol policy at hire.
  5. There was no reasonable suspicion that the employee was under the influence of drugs or alcohol in the workplace.

In other cases, where there was no reasonable suspicion, and the employee was terminated for a positive drug test, and the positive drug test did not prohibit the employee from performing his/her duties, unemployment benefits were awarded, due to the safe haven that G.L. c 94C §32L (§32L ) provides. §32L states:

“Notwithstanding any general or special law to the contrary, possession of one ounce or less of marijuana shall only be a civil offense, subjecting an offender who is eighteen years of age or older to a civil penalty of one hundred dollars and forfeiture of the marijuana, but not to any other form of criminal or civil punishment or disqualification.

By way of illustration rather than limitation, possession of one ounce or less of marijuana shall not provide a basis to deny an offender student financial aid, public housing or any form of public financial assistance including unemployment benefits, to deny the right to operate a motor vehicle or to disqualify an offender from serving as a foster parent or adoptive parent. Information concerning the offense of possession of one ounce or less of marijuana shall not be deemed ”criminal offender record information,” ”evaluative information,” or ”intelligence information” as those terms are defined in Section 167 of Chapter 6 of the General Laws and shall not be recorded in the Criminal Offender Record Information system.

As used herein, ‘possession of one ounce or less of marijuana’ includes possession of one ounce or less of marijuana or tetrahydrocannabinol and having cannabinoids or cannibinoid metabolites in the urine, blood, saliva, sweat, hair, fingernails, toe nails or other tissue or fluid of the human body.”

So, in these cases there is some overlap between the state law and employer responsibilities with regard to unemployment experience ratings.

Reasonable Suspicion and Drug & Alcohol Policies

The most important consideration to make when designing a drug & alcohol policy is that you are focused, as an employer, on providing a safe, and healthful workplace for your employees.

Employees who are under the influence of drugs or alcohol in the workplace put themselves and others in harm’s way. Through training and communication, and perhaps most significantly, a culture that supports a drug free workplace, you can reduce the hazards inherent to substance abuse.

Step 1: Create a policy that affirms that drug and alcohol use is not tolerated in the workplace. Clearly define the ways and circumstances in which drug and alcohol testing will be conducted. Clearly define the consequences of positive drug tests.

Step 2: Communicate the policy to every employee at the time of hire, before they begin work. Employees should be required to sign off that they have read and understand the policy, and that they have had opportunity to ask questions and have their questions answered.

Step 3: Train your managers on Reasonable Suspicion. Some of our clients prefer to have their entire staff trained on Reasonable Suspicion as a way to openly communicate about the company’s policies and the roles and responsibilities of each individual in the workplace.

Step 4: Continue to train and communicate your drug and alcohol policy to your employees throughout the year.

Some employers also find it useful to offer an Employee Assistance Program for employees who seek substance abuse assistance. This is a laudable effort to combat substance abuse, and promotes a culture where employees are more likely to seek help for their own struggles or voice concerns regarding observations of other employees who may be using drugs or alcohol at work. Remember, reasonable suspicion is never hearsay, it must be observed and documented.

Massachusetts’ law on the regulation of marijuana will continue to evolve. It is important that employers stay up to date on the changes, to make sure that their employment policies are revised as necessary with consideration for the law, and employer responsibilities.