Presented By: Mark Adams, SPHR, SHRM-SCP

Director of HR Services Employers Association of the NorthEast

and

Erica E. Flores, Esq.

Skoler, Abbott & Presser, P.C.

Legalization of Marijuana in Massachusetts:

Will it Impact Your Business?

Agenda

• Background

• What does the law do?

• What does the law not do?

• When will the law take effect?

• How will the law impact employers?

Background – Federal Law • Federal Controlled Substance Act –

regulates various drugs and categorizes them into five different schedules • https://www.dea.gov/druginfo/ds.shtml

• Marijuana is considered a “Schedule I”

substance • Schedule I – no currently accepted

medical use and a high potential for abuse

• Still is considered illegal from a federal law standpoint

Background – Massachusetts Law • “Legalized” marijuana for medical use;

effective January 1, 2013

• Chapter 369 of the Acts of 2012

• Created protections from state prosecution for permitted use of medical marijuana by person registered to use marijuana in response to a “debilitating medical condition.”

• One of 28 states that allow for such use

2016 Ballot Initiative – “Question 4” • “Regulation and Taxation of

Marijuana Act”

• Intent: • Control production & distribution of

marijuana in a manner similar to alcohol

• Establishes a license, regulation and taxation system

• Legalize use for adults 21 years of age or older.

2016 Ballot Initiative – “Question 4” • Passed by the Massachusetts voters

by a 53.6% to 46.4% margin. • 1.7 million voted in favor of the

measure

• Massachusetts is now one of eight states to legalize for recreational use: • Other states: Alaska, California,

Colorado, Maine, Nevada, Oregon and Washington, as well as D.C.

What does the law do?

• Legalizes recreational use of marijuana for people 21 years of age and older

• Allows for personal possession of up to 10 ounces inside the home

• Allows for growth of up to six marijuana plants in homes

What does the law do? • Allows for personal possession of up

to one ounce in public

• Stuck on a holiday present?

• Can gift up to one ounce of marijuana so long as person is 21 years or older and not advertised or promoted to the public

What does the law do? • Establishes an advisory board (Cannabis

Control Commission) to help develop regulations no later than 9/15/2017

• Establishes a scheme for licensing of marijuana establishments

• Establishes state excise tax of 3.75% for its sale (on top of state sales tax) and allows municipalities to charge an additional tax of up to 2% • Exemption for sale by medical marijuana

centers

What does the law do? • Allows municipalities to set up

reasonable ordinances and by-laws • Govern time, place and manner of

marijuana manufacture and retail establishment operations

• Limit the number of establishments in the city or town

• Establishes reasonable restrictions on signage

• Establish civil penalties for violation of local ordinances and by-laws

What does the law NOT do? • It does not allow for marijuana to be smoked

in a public place – unless otherwise allowed by city or town ($100 civil fine)

• Does not permit operating under the influence of marijuana (still subject to same OUI penalties)

• Does not permit open container of marijuana in motor vehicles in public areas ($500 civil fine)

What does the law NOT do? • Does not legalize possession or use by

those under 21 years of age ($100 civil fine + completion of drug awareness program)

• Does not allow for possession or consumption on public or private school grounds

What does the law NOT do? • Section 2(e): EMPLOYMENT

• “This chapter 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.”

When will law go into effect?

The law went into effect on December 15, 2016,

which means the possession and use of marijuana is now legal at the state level,

but retail licenses are not likely to issue until 2018, and could be further

delayed by the legislature.

Employer Impact

• Even if implemented in its current form, employer policies are not going to go “up in smoke.” You can still: • Prohibit possession, use or being

under the influence of marijuana

• Test for marijuana

• Allow for discipline for testing positive for marijuana

• Allow for discipline for being convicted of a crime involving marijuana

Employer Impact • But consider:

• Is your drug policy in alignment with your business objectives?

• Is your policy a help or a hindrance in attracting or retaining workers?

• Do safety concerns limit your options to be more flexible?

• Are you government contractor?

• Do you take a zero tolerance approach?

• Do you test? Not test?

Employer Impact • But consider:

• If you test, are you considering dropping or modifying your marijuana testing? • Detects tetrahydrocannabinol (THC)

metabolites which are found in marijuana

• NOTE: THC can stay in system for up to 3 months

• What is your cutoff for a positive test?

• 50ng/mL? 20ng/mL? Any detection?

• A positive test is not necessarily the same as being impaired

Employer Impact • “If it’s still illegal under federal law,

does any of this really matter?”

• YES!

• The statute does not immunize employers from civil liability arising out of adverse employment actions related to the lawful use of marijuana, and…

• …the Massachusetts state law that requires employers to accommodate disabilities is silent on the subject.

Employer Impact • “If it’s still illegal under federal law,

does any of this really matter?”

• Employers may see a rise in positive drug test results and requests to tolerate off-site use as an accommodation for a medical condition . . . even if they don’t have a medical marijuana prescription.

• This increases employers’ risk of civil liability!!

But how?? • A recent Superior Court case – Barbuto v.

Advantage Sales – sided with employers on the issue of accommodating off-duty use of medical marijuana because the drug remains illegal at the federal level.

• But – the case left open two other potential avenues of legal relief for employees under state law.

But how?? • (1) The Court did not consider whether the

plaintiff had a viable claim for disability discrimination, i.e. whether she was fired “because of” the disability for which she used marijuana.

• (2) The Court concluded that she did have a viable claim for an invasion of privacy because the employer tested her even though her position was not safety sensitive.

Further Considerations • Based on the Barbuto decision, employers

should at least consider whether they have a compelling reason to be concerned about off-duty use of marijuana by employees.

• Could you prove that accommodating such use would be an undue hardship in the absence of a legitimate safety concern?

• If not, could be an invasion of privacy. • Remember, the courts use a balancing test –

was the invasion of privacy outweighed by the employer’s interest in obtaining the information.

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