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Mass. employers face decisions on marijuana

A supporter of the ballot question to legalize recreational use of marijuana in the state wore a message on his jacket at an Election Night rally at Lir restaurant.
A supporter of the ballot question to legalize recreational use of marijuana in the state wore a message on his jacket at an Election Night rally at Lir restaurant.John Blanding/Globe staff/Boston Globe

It will soon be legal to smoke marijuana in Massachusetts. But that doesn’t mean your boss will let you.

Just as with alcohol consumption, employers in Massachusetts will be allowed to set rules about employees’ use of marijuana at work, such as restricting employees from being high on the job and requiring drug testing.

And employers will be on solid legal ground if they fire an employee for testing positive for using the drug, said Adam Fine, an attorney who was closely involved with the legalization campaign.

“We did not want recreational marijuana users to feel like they had employment protections,” Fine said. “That was not the intent of this law. It would be nice to get to a place where employers don’t discriminate, but we don’t want to interfere with their hiring practices.”


Medical marijuana patients are on iffy ground. Fine represents a patient who sued her employer for being fired after failing a drug test. A Suffolk Superior Court judge dismissed much of the case earlier this year, but Fine hopes to appeal.

In Colorado, that state’s top court in 2015 ruled that Dish Network lawfully fired a medical marijuana patient who said he had not used the drug on the job because the use of the drug was still illegal under federal law.

In Massachusetts, Tracy Burns, chief executive of the Northeast Human Resources Association, predicted that companies will not worry much about employees’ use of marijuana while off duty unless it affects productivity.

Instead, businesses will probably focus on updating their policies to emphasize that workers cannot show up impaired or use the drug on the job. Employees whose work could lead to accidents or operational mistakes — those running heavy machinery or handling money, for example — will probably be of the most concern to businesses, said Burns, whose group represents human resource professionals in the region.


But determining whether an employee is high while at work will be a challenge because, unlike alcohol, traces of marijuana can remain in the body for weeks.

“There’s no exact test to say, ‘Oh, they’re high right now,’ ” said Christine Cunneen, chief executive of Hire Image, a Rhode Island company that sells drug-testing services to employers.

She suggested companies should also revisit their policies on testing job applicants and clarify, for example, whether they would hire someone who tests positive.

In Colorado, some companies conducted more frequent drug testing in the aftermath of marijuana legalization there in 2012, said Curtis Graves, an attorney with the Denver-based Mountain States Employers Council. A survey from the group in 2014 found that companies had been far more likely to intensify drug testing than to relax it after the law was passed.

But that has since changed, Graves said. As labor markets become tighter, Colorado companies are increasingly overlooking positive tests for marijuana as its use becomes more acceptable, Graves said.

“With unemployment so low, [companies] simply cannot afford to rule anybody out just because they smoke marijuana on a Friday night,” Graves said, adding that tight labor markets in Massachusetts could create a similar attitude here.

Representatives of large employers in Massachusetts predicted they would proceed with caution.

“I think employers are going to wait and see what they’re still able to do to ensure safety, but it’s unclear,” said Christopher Geehern, a spokesman for the business group Associated Industries of Massachusetts, which opposed legalization. “For companies that do drug test now, my guess is they probably don’t have plans to change.”


A spokesman for General Electric Co. said the company tests employees for drug use when required by federal law, such as for drivers, and tests other employees occasionally. But the company, which recently moved its headquarters to Boston, does not yet have a position on testing employees in a state where marijuana is now legal.

Massachusetts General Hospital tests drivers for marijuana in some circumstances but does not across the board. Andrew Gottlieb, director of Occupational Health for MGH, said the hospital is “not planning on making any changes” to its policy after Tuesday’s vote.

David Kurtz, a Boston-based workplace attorney with the firm Constangy, Brooks, Smith & Prophete, thinks companies should broadcast their policies to employees post-legalization, even if they don’t intend to change them very much. Employees who hear marijuana is legal in Massachusetts might assume they can come to work impaired unless the rules are not made clear, Kurtz said.

Adam Vaccaro can be reached at adam.vaccaro@globe.com. Follow him on Twitter at @adamtvaccaro. Hae Young Yoo can be reached at haeyoung.yoo@globe.com. Follow her on Twitter @HaeYoung_Yoo.