On January 31, 2014, Massachusetts state health officials announced the names of the companies that will receive the first 20 licenses to open medical marijuana dispensaries in the Commonwealth. Although it will likely be summer before any open their doors for business, the new law opens a Pandora’s Box of new employment issues for MA employers.
The Massachusetts statute provides some important guidance for employers to take note of “Nothing in this law requires any 
accommodation of any on-site medical use of marijuana in any place of employment…or of smoking medical marijuana in any public place.” The general consensus among human resource and legal experts is that the law does not require employers to modify their employment practices, drug-free workplace policies, drug testing policies, or accommodation policies. Because federal law preempts state medical marijuana laws, medical marijuana users authorized under state law are not protected from employer drug testing policies.
This is an evolving area, but below are five general guidelines for employers:
- The Massachusetts law does not permit an employee to use marijuana in the workplace or to be impaired at work.
- Employers need not accommodate a medical marijuana user in any way, even if he or she possesses a registration card.
- Employers can continue to include marijuana in their drug testing, although employers should ensure they provide their applicants with proper notice. Employers will likely be permitted to decline to hire an applicant or discharge or discipline an employee for a positive test for marijuana use, even if for authorized medical reasons outside of the workplace and not on work time, especially for safety-sensitive positions.
- Employers should consider reviewing and revising their written drug testing and drug-free workplace policies to make clear that marijuana use and possession, “even for medical purposes,” is prohibited on work premises and being used during working time, including breaks, and may subject employees to disciplinary action.
- Employers may also want to confirm that their job application and related paperwork contain clear information on their drug testing policy and drug-free workplace policy, including addressing the use of marijuana for authorized medical purposes, and that these policies are clearly communicated to applicants and employees. Employers may want to consider having employees sign an acknowledgment, confirming their understanding of such policies as well.
HR Knowledge advises employers are to review their drug-testing policies and procedures to ensure that proper safeguards are in place, and that applicants and employees have appropriate notice regarding testing for the use of medical marijuana.