As Massachusetts Inches Toward Retail Marijuana, Employers Ponder Drug Tests

Jun 19, 2018

Massachusetts voters legalized marijuana at the ballot box in 2016, and retail sales are poised to begin on or about July 1. But there still isn't much guidance coming from state officials about how businesses should deal with drug testing their employees when it comes to pot.

Katie Johnston, a reporter for the Boston Globe, recently looked into what some Massachusetts companies are doing. She said they face a dilemma if they do stop testing for marijuana.

Katie Johnston: It's still illegal on the federal level, so there could be possible ramifications there. And also if they have safety-sensitive positions that they need to keep testing for to make sure people don't get hurt, is it fair to keep testing them and not other groups of employees -- say office workers or something like that?

And then if they don't stop testing, will they lose workers who just go to other companies who have stopped? And in this tight labor market that's the big dilemma, because you don't want to lose workers. And then there's a possibility that if you don't stop testing you could face claims from people who say the tests are discriminatory, or lawsuits from people who...are using it for medical reasons, and say that they have a right to do so. So it's a whole can of worms, really. 

Adam Frenier, NEPR: Focusing in on that safety issue -- there's no test right now that can tell if somebody is under the influence of marijuana, let's say, during working hours or whatnot. How much is that complicating things? Obviously there's other substances that you can test for pretty immediately.

Right. And there are things in the works and I have heard from several companies who are developing -- I think it's like a breathalyzer that they say can detect marijuana use within the last few hours. So yeah, it makes them more difficult to manage, because when you are testing people, you are testing them for use anytime over the last couple of days or even weeks, depending on how heavy a user they are.

So there are people who have been fired. In Oregon there a case of a TV reporter who got into a fender bender on our way to assignment. They gave her a drug test -- as is mandated -- and she failed it and they fired her. But she said she wasn't under the influence then; it was days earlier on her own time and it's legal in Oregon. 

And you talked to one major lab that does a lot of testing work for employers across the country. What are they seeing in terms of positive results for marijuana?

They're saying that the positivity rates are going up -- for drugs, in general, [they] are at their highest rate in a decade. In Massachusetts, between 2016 and 2017, positive results specifically for marijuana climbed 14 percent, and in Nevada they actually shot up 43 percent.

Certainly this is still fairly new in Massachusetts. Is there a hope that there is some legal precedents that might come up in the near future or be set that can help clear some of this up when it comes to employment law?

I think that's what everybody's waiting for. And the only court test that's happened here is for medical marijuana. The Supreme Judicial Court ruled last year that companies can't fire employees who have a medical marijuana card for using the drug, and that employers have to give those patients [a] reasonable accommodation. That's the only law in our state so far. People are really waiting to see what happens because there's bound to be more court challenges.