A new set of legal issues could be popping up with the recent rollout of recreational pot in Massachusetts, forcing employers and employees to educate themselves before toking up.
Drug testing and privacy issues will be the biggest game changers, and business owners will need to take a hard look at their drug policies according to Eric LeBlanc, Cambridge-based attorney at Bennett & Belfort.
“The language of all employment handbooks — if it hasn’t already changed, it has to change,” said LeBlanc who added that some employers may start to take a more relaxed stance about marijuana use due to its increased social acceptability.
LeBlanc said companies still have the right to restrict use because the legal status of recreational weed does not expand any employee rights. However, he said off-hours marijuana consumption could be “potential breeding grounds for legal action.”
This is because marijuana can be consumed only in private settings in Massachusetts, making it difficult for business owners to confirm any suspicion of employee drug use without a breach of privacy according to LeBlanc. He added that employers may still implement random drug testing though, which can be grounds for termination if testing positive for marijuana.
Legal analyst Michelle Lee Flores said the “uncharted waters” surrounding recreational marijuana and employment do not create a “get out of jail free card.”
“I think that the impressions employees have is that it is legal now, and that it’s a free-for-all. It’s not necessarily a free-for-all,” said Flores.
She also expects some lawsuits to crop up within the next year for off-hours marijuana use. She pointed to faults in drug testing where technology needs to catch up in being able to pinpoint impairment and know when the drug was actually consumed.
“I think it will be a matter of time before testing will be able to get some better idea on one’s impairment,” said Flores.
The disconnect between federal and state laws pertaining to marijuana also create a gray area in the workplace, according to Boston employment attorney David Robinson. While he doesn’t expect to see any lawsuits arise for recreational pot use, he said employers may be torn on how they want to handle the issue.
“I see employers who aren’t regulated by federal law, I see them looking to eliminate it from the battery of their tests. They don’t want to deal with the issue,” said Robinson.
Northampton-based cannabis attorney Marvin Cable added that the “ball is in the employer’s court.” Northampton was one of the first cities to open up recreational pot shops where lines were out the door most of the week.
Cable said some employers will “have to maintain federal standards” while others may be more open.
“You’re going to find a division, and I think there’s going to be support for some sectors,” Cable said.
He warns, “Just because it’s legal doesn’t mean your employer looks favorably upon it.”