The Massachusetts Act for the Humanitarian Medical Use of Marijuana (Medical Marijuana Law), became effective on January 1, 2013. There is nothing in the Medical Marijuana Law that prevents employers from prohibiting employees from working while under the influence of marijuana.
On November 8, 2016, Massachusetts citizens voted in favor of legalizing the possession and use of marijuana for recreational purposes. This law prohibits marijuana use in public places or anywhere else smoking is prohibited. Licensed marijuana establishments will not open until at least January 1, 2018. Individuals 21 and older can lawfully use marijuana for recreational purposes starting December 15, 2016.
Employer protections for recreational marijuana: the law “shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.” So basically the use of marijuana can be prohibit at the workplace.
As Massachusetts now permits use of marijuana for both medical and recreational purposes, a thorough review of drug use and testing policies is necessary. An employer must make decisions about medical and recreational marijuana particularly regarding prohibiting employee use of marijuana outside of work. Employers should seek experienced employment counsel on drug free workplace policies. It is clear that DOT regulated employer and employers working on Federal contracts must have drug free workplace policies that prohibit marijuana.
Sample Policy Addendum for a Company Drug Free Workplace Policy (this is not legal advice and all policies should be approved by legal counsel)
This company is committed to providing a safe, healthy and productive workplace that is free from alcohol and unlawful drugs as classified under local, state or federal laws (including marijuana – medical and recreational) while employees are working on the employer’s premises (either on or off duty). Employees that work while under the influence of drugs or alcohol pose a safety risk to themselves and others with whom they work. The company prohibits employees from reporting for work with an illegal drug, including marijuana (medical, recreational or otherwise), in his or her system. A positive drug test will be a violation of this company’s drug free workplace policy.