Massachusetts employers may require employees to be tested for drugs in some 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 test must be work-related and consistent with business needs. Because marijuana is illegal for federal purposes, but legal under state law, 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. Companies and organizations should pay special attention to their policies regarding drug testing, occupational safety, medical accommodations, and off-duty use.
It is very important that employers clearly notify applicants and employees that drug tests include testing for the presence of marijuana. The legalization of medical marijuana use by Massachusetts state law requires an adjustment of employer policies and practices to accommodate employee use of marijuana. While there are laws in some states that protect employees from using recreational marijuana outside of work, Massachusetts has no such law; in fact, the recreational marijuana law as it is currently in effect explicitly does not require employers to adapt to recreational marijuana use. Now that recreational marijuana use is legal in Massachusetts, employers must adopt new policies to ensure safety and productivity in the workplace, while respecting people's rights to consume products that are legal. However, in “drug-free” workplaces, federal law still requires employees to test negative for marijuana and other restricted substances. Both alcoholism and drug addiction are considered disabilities, and employers cannot discriminate against employees on the basis of those conditions. In such incidents, the hospital had a policy of administering drug tests to ensure that employees were not under the influence of alcohol or drugs.
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. With Connecticut legalizing recreational marijuana in June and Maine, Massachusetts and Vermont laws already in place, only New Hampshire and Rhode Island remain obstacles to legalization. Employers should reevaluate their policies regarding drug testing in the era of post-legalized recreational marijuana.
