Now that medical marijuana is legal in Massachusetts, can employees spark up before work or on their lunch breaks without fear of reprimand from their bosses?
That’s one of many questions being fielded by insurance companies and labor lawyers, approximately five months after Massachusetts voters approved the use of medical marijuana by patients who receive a doctor’s recommendation to use the substance to treat debilitating medical conditions.
“Employers still have a fair amount of latitude,” said Jonathan Sigel, a Westborough employment attorney. “What’s clear is you don’t get a free pass to use it at work or possess it at work. Period.”
However, Sigel said, the law is less clear on what an employer should do when a current or prospective employee fails a drug test but has a doctor’s recommendation to use medical marijuana.
The state Department of Public Health on March 29 issued draft regulations for patients to obtain and use marijuana. While the regulations are being finalized, a written recommendation from a physician acts as a medical marijuana registration card, and qualifying patients may be allowed to grow a limited supply for their own use.
Employers cannot discriminate against applicants or employees just because they get a state registration card allowing them to use pot legally, according to Sigel. But for now, he said, he’s telling employers that it’s likely they can fire or refuse to hire people who test positive for the drug.
“I’m comfortable right now giving that advice, with the proviso that we’ll see,” Sigel said. “The law can change on a dime. It might take a little while for regulations to come out, but it won’t take long for people to start filing suit.”
Lynn Ahlgren, a consultant to the MetroWest Regional Transit Authority, said the organization has no plans to shift its drug-testing policies. Candidates are tested before they’re hired, and bus drivers are tested randomly throughout their employment, she said; anyone who tests positive is fired.
“Because we’re funded by the federal government, we adhere to federal regulations, which prohibit performance of safety-sensitive activities while under the influence of class 1 drugs,’’ such as marijuana, Ahlgren said.
Shaleen Title, a Boston-based lawyer who specializes in medical-marijuana issues, said she hopes employers will take a hands-off approach to employees who use the drug for medicinal purposes, as long as it isn’t affecting their job performance.
“My hope is that, as long as a patient is privately using medical marijuana, and it’s not interfering with their work, that no employer would discriminate against them on that basis,” Title said.
Betty Aldworth, deputy director of the National Cannabis Industry Association, said she isn’t aware of any state that offers protections for employees who test positive for marijuana, and said patients essentially have to count on the good will of employers.
Aldworth said employees in Colorado — where medical marijuana has been legal for years, and whose voters approved of legal recreational use of the drug in November — have been fired for positive tests even though they weren’t in safety-sensitive positions, and didn’t use pot on the job. “There are these antiquated policies in place that are negatively impacting employees,” she said.
Sigel said random tests are allowed in Massachusetts only for workers in safety-sensitive positions, such as manufacturing. For other jobs, employers are allowed to test applicants as part of the hiring process, he said, but can test again only under special circumstances, including after a work accident or when they have reason to suspect marijuana use.
Michael Wolpert, a Westborough resident who co-owns two Worcester-based businesses, Wolpert Insurance Agency and Fleet Safety Services, said he does not drug-test his own employees, but clients of his insurance company have been asking about the law change.
“The topic comes up when we’re providing corporate risk management advice, if I’m talking with a contractor about whether it’s a good idea to institute a drug-testing policy,” said Wolpert, a client of Sigel’s. “There are zero tolerance, one strike, two strikes.”
Wolpert said some companies have simply decided to stop testing for pot. “It’s not worth the challenge of, OK, what do we do if we catch someone. We have to run it by attorneys, we have to determine if there’s a medical need.”
Although Wolpert doesn’t test his employees, he said he could envision the drug becoming a problem in the workplace, depending on how it’s used.
“I would be concerned if I had to hire someone who was using medical marijuana, who was getting stoned in the morning and showing up impaired,” he said.