3 Practical Challenges for Employers Created by Legalized Marijuana

When Massachusetts voters legalized the use of marijuana for medicinal purposes four years ago, the impact on most employers was limited to clarifying that “legal” marijuana use was still generally prohibited in the workplace. Now, Massachusetts has legalized limited use of recreational marijuana. Although the recreational marijuana use law also provides that employers may prohibit employees from reporting to work or performing work under the influence of marijuana, the new law is raising practical challenges for employers. Here are three ways that employers may consider changing what they have been doing:

1. Pre-employment Drug Testing

Many employers require job candidates to successfully pass a drug test as a condition to receiving a job offer. Prior to the legalization of marijuana, a positive test for marijuana use by a job candidate was an indication of illegal drug use and clear grounds for rescinding an offer of employment. Since legalization of medical and recreational use, from a legal standpoint, rescinding a job offer based on testing positive for marijuana use is still generally permitted. From a practical standpoint, however, the rationale that marijuana use is illegal no longer exists and brings into question the rationale for drug testing for marijuana at all.

For example, a job candidate may be prepared to have a clean drug test, but just after taking the drug test could engage in recreational marijuana use, thus defeating the purpose of the employer’s knowing whether the candidate uses marijuana. Also, if the drug test is positive for marijuana use, employers may still be required to assess whether the marijuana use is supported by a medical prescription and, thus, requires the employer to engage in an interactive process to determine whether or not continued medical marijuana use is a reasonable accommodation that must be provided to the candidate. Employers may want to reconsider what their goal is for pre-employment drug testing for marijuana and whether it makes sense in light of its legalization.

2. Identifying Marijuana Use at Work

The laws legalizing medical and recreational marijuana use in Massachusetts allows employers to prohibit the use of marijuana at the workplace. But, detecting its use may be challenging. With the advent of “vaping”, where the smell of marijuana can be easily masked, it may not be clear at all whether an employee is under the influence of marijuana at work. Employers can drug test, but as is the case with pre-employment drug testing, the drug test may not accurately indicate whether the employee is currently impaired by marijuana use that occurred after work hours.

Due to the limited value of drug testing in most cases, employers may consider drug-testing only where there is a reasonable basis to believe someone is impaired by the marijuana (or some other drug) or is a threat to the safety of the employee or others. Employers may also wish to consider training managers on identifying signs of being under the influence of marijuana or other drugs that may negatively impact employee performance or safety.

3. Prohibiting Marijuana Use as a Policy

Although the employers may prohibit employees from using or being under the influence of marijuana while at work, employers may consider what, if any, impact such a prohibition creates on the availability of workers for certain positions. If the job duties are not impacted by moderate marijuana usage, then an employer may find that the pipeline for candidates for the positions may decrease if an employer maintains a hard and fast rule about absolutely no marijuana use. As a result, employers may wish to consider whether banning marijuana use completely, or at least engaging in pre-employment drug testing for marijuana, is or will negatively impact their pool of talented and otherwise qualified candidates.

Although the workplace laws have not changed much with the legalization of marijuana, employers should reconsider the practical implications for their businesses and on their workforce, and consider changes to workplace practices and policies to adapt to the changing environment.

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