Can Massachusetts Companies Drug Test for Weed?

Understand what Massachusetts employers need to know about drug testing laws and regulations related to marijuana use.

Can Massachusetts Companies Drug Test for Weed?

Massachusetts workplace drug testing laws do not affect employers' rights to impose restrictions on marijuana use. Employers may require employees to be tested for drugs in certain circumstances, but they must meet specific legal criteria. Under federal and state laws against disability discrimination (the Americans with Disabilities Act and Chapter 151B), an employer may be allowed to require an applicant to undergo an illegal drug test after offering a job, if the test is relevant to the employee's ability to do the work and applies equally to all employees in the same job category. After hiring an employee, any drug screening should be work-related and consistent with business needs. It is unclear whether employers in Massachusetts can test for marijuana even if they can test for other drugs; however, if there is a specific federal requirement for testing marijuana, such as truck drivers, federal law would govern.

Massachusetts has not passed any laws that regulate or restrict an employer's right to require drug testing. Founded in 1973 as an industry-focused company, Epstein Becker Green has decades of experience serving clients in healthcare, financial services, retail, hospitality and technology, among other industries. Massachusetts is one of 29 states that allow the use of marijuana for medical purposes (and another 17 allow certain low-THC cannabis products for medical reasons). The court held that while marijuana use remains illegal at the federal level, Massachusetts public policy prioritizes accommodating workers with disabilities. The decision in Barbuto makes it clear that Massachusetts employers must now participate in the interactive process in which a disabled employee with a valid prescription for medical marijuana tests positive for marijuana in violation of a drug policy. While recreational marijuana use is legal in Massachusetts, there is currently no law that protects employees or job applicants who test positive for the substance, even if they use it outside of business hours.

The Court found that the validity of an employer's random drug testing policy should be weighed on a case-by-case basis, taking into account the employee's job responsibilities and the employer's interests. Both alcoholism and drug addiction are considered disabilities, and employers cannot discriminate against employees on the basis of those conditions. The Massachusetts Supreme Court has issued a ruling on random drug testing in private employment. It now calls into question the validity of zero-tolerance drug policies for state employers when it comes to medical marijuana. Specific workplace safety concerns, potential danger to the public, and specific regulatory requirements make a testing program more likely to be valid under Massachusetts privacy law. While the use of medical marijuana could be considered a public policy concern in certain circumstances, given that an employee may be discharged for smoking off-duty cigarettes, Massachusetts courts are unlikely to protect employees who test positive for recreational marijuana use.

The highest state court of the Commonwealth of Massachusetts recently issued a decision announcing that disabled employees who have been prescribed medical marijuana may be entitled to reasonable accommodation under state disability discrimination law, while requiring employers to participate in an interactive process to help make this determination.