Massachusetts voters recently voted to decriminalize marijuana cultivation, possession and sale for limited amounts. Does this create a problem for employers in Massachusetts?
The short answer is, of course introducing a longstanding illegal 'controlled substance' into society at large and workplaces in particular will create challenges for businesses. The good news for employers is they hold a 'hole card': pot is still illegal under federal law. This provides powerful cover for employers when developing workplace rules.
Some examples for employers' latitude include:
- Random drug testing can continue such that even weekend use may be prohibited.
- The Americans with Disabilities Act does not overrule federal law on marijuana so an employer may, as a condition of continued employment, prohibit even prescribed medical use by employees.
The most important point today is that employers should review or develop their drug use policy right away. As with other employment policies, having written and clearly communicated workplace rules guidance is always better than having no rules or unwritten rules, which are subject to interpretation and discrimination. When developing workplace standards, remember one of the greatest employment practices risk is treating different employees differently because no rules, or unclear rules exist.
So how does an employer develop a drug use policy? First, assess and analyze the overall workplace rules from the risk angle. Companies with a transportation element face risk every time a driver gets behind the wheel; a no tolerance policy makes sense in these cases. Same with machine operators, where the risk may be to employees themselves, to co-workers, (workplace safety) or to a production line. Conversely, a creative or sales organization may not care what employees do on their own time as long as they perform when at work.
What about random drug testing? An old truth in business is that you get not what is expected, but what is inspected. If you are going to be serious about a no tolerance drug policy, you have to test for use: randomly, and consistently.
As with all things in business, there are tradeoffs. One trade-off is with your specific labor pool. Businesses have different labor needs: certain businesses may draw from a labor pool with higher than median recreational marijuana use. Call me crazy, but might recreational drug use be higher in creative urban industries than say, insurance or accounting? If a drug-free policy limits your labor pool for qualified talent, consider whether recreational off-hours drug use is relevant to the functioning of the business. If it isn't relevant to getting the job done, should the business really care?
To this last point, as with many employment policies, the overriding factor should be, does off hours recreational marijuana use affect the business that gets done each day? Or could it affect the safety of your employees, which has a direct effect on costs? (See this article about workers compensation) If it does not, the best approach may be with consistent with alcohol use: on your own time, but never, ever at work.
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Legal & technical disclaimer: Any advice provided here is not legal advice. Statements or advice are based on our experience in risk control, mitigation, and transfer, and is believed to be effective and valid when provided. All legal or contractual wording, including any suggestions offered in a legal context should be reviewed by qualified legal counsel.