Few Employers Change Drug Tests with Legal Marijuana

Posted by Tom Jones on Jan 30, 2019 8:30:00 AM

Drugtest1.2019Only 10 percent of employers plan to change their drug-testing policies now that recreational marijuana is legal in Massachusetts, a new Associated Industries of Massachusetts survey shows.

The member survey, conducted by AIM HR Solutions, found that two-thirds of the 52 Massachusetts employers who participated say they drug-test employees or job candidates. Three quarters of the companies that conduct drug tests do so for marijuana (THC).

Kyle Pardo, Vice President of Consulting Services for AIM HR Solutions, said the limited number of companies planning to change their marijuana testing policies reflects widespread uncertainty among employers as legal cannabis impinges on the idea of a drug-free workplace.

“Testing detects the presence of marijuana long after an employee may have used the drug during non-work hours. But there is no clear test to determine whether or not that employee is impaired and may represent a danger to co-workers or customers,” Pardo said.

Drugtest2.2019“It has created a confusing situation for employers.”

Recreational marijuana became legal in Massachusetts in 2016 and retail pot dispensaries began to open throughout the state at the end of last year.

Massachusetts law does not require any accommodation of on-site medical or recreational use of marijuana in any workplace or permit employees to come to work under any controlled substance. A recent Massachusetts Supreme Judicial decision requires employers to address an employee with a medical marijuana card in the same manner as those using any other lawfully prescribed medication.

Adding to the confusion is that employers in some federally regulated industries such as trucking and transportation, as well as many federal contractors are required to drug-test employees. Marijuana remains illegal under federal law.

Pardo recommends that employers make sure their hiring process and progressive discipline policy contain information on the drug testing policy and that applicants and employees sign for and acknowledge their understanding of such processes and policies.

Topics: Employment Law, Massachusetts employers, Marijuana

Marijuana Question Passes; Now What for Employers?

Posted by Tom Jones on Nov 9, 2016 7:24:50 AM

Massachusetts has a new law permitting the possession and recreational use of marijuana. Voters approved Question 4 on legalization yesterday by a margin of 53.6 percent to 46.4 percent.

Marijuana.jpgAnd unlike the earned sick time law a couple of years ago, this one comes with a short lead-in period - the law takes effect on December 15.

What does the 12-page statute mean for employers?

The law focuses almost exclusively on the regulation and taxation of the sale of recreational marijuana. The measure will actually have little to no direct impact on most employers. There is only a short reference to employment in section 2, which discusses limitations of the law:

(e) This chapter shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter (i.e. the use of recreational marijuana) in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.    

Companies that addressed their drug-testing and drug-use policies in response to the 2012 medical marijuana law can prepare for the 2016 law with little more than a quick review. For companies that did not establish policies four years ago, now is the time to do so.

Review your drug/alcohol-free workplace policies to ensure that they cover all forms of drug use, including marijuana. You should also review your drug- and alcohol-testing polices to ensure they cover the topics you want.

You may want to revise your policy to ensure that it covers all aspects of your workplace, including vehicles used for business purposes, off-site duties at customer sites, work-related events, seminars and company owned parking lots and garages.

Employers should keep an eye out for potential court cases related to the new law. Such cases could materially affect the manner in which employers implement the law in the future.

There has been only one legal case so far in Massachusetts involving an employee and medical marijuana. In that case, the employee was terminated, sued claiming discrimination, and the court ruled in the employer’s favor on all six counts, except privacy.

Call AIM with any questions about the new marijuana law or about reviewing and updating your drug-use related polices. Contact Beth Yohai and or call her at 617-262-1180 x335. 

Topics: Elections, Workplace Safety, Marijuana

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