In December 2018, we reported that Senator Jason Lewis was preparing to introduce legislation that would prohibit employers from discriminating against employees who use recreational marijuana on their own time. Senator Lewis has now filed that bill. If it passes, the proposed law would severely curtail employers’ discretion to discipline or terminate employees who use marijuana outside of work.
As an initial matter, the bill proposes to eliminate a key provision of the recreational marijuana law, Section 2(e), which makes clear that employers are not required “to permit or accommodate conduct otherwise allowed by [the law]” and retain “authority to enact and enforce workplace policies restricting the consumption of marijuana by employees.”
The bill would replace that broad grant of discretion with a new Section 22, which would expressly forbid employers from discriminating against any current or prospective employee based on their use of recreational marijuana unless one of four specific exceptions applies. First, employers would be allowed to take adverse action against an employee who consumes or is impaired by marijuana in the workplace during work hours or while performing “tasks related to employment.” Second, employers would be allowed to take adverse action against employees who test positive for marijuana if they are required to test employees for marijuana use under requirements established by the federal government. Third, employers would be allowed to take adverse action against an employee who is unable to maintain a license or other credential that is reasonably necessary for the employee to do their job, even if the qualifications for the license or other credential prohibit marijuana use. And, fourth, employers would be allowed to take adverse action against an employee who is charged with a marijuana-related crime if the employer reasonably believes that the employee is guilty of the crime based on its own investigation.
Finally, the bill would allow employees who believe they were discriminated against in violation of the new law to file a civil action for damages or injunctive relief, and would give courts authority to award double damages if they find that the act or practice complained of was committed with knowledge, or reason to know, that it was unlawful.
Since the bill amends only the recreational marijuana law, it does not appear to apply to employees who use marijuana for medical reasons in accordance with the state’s medical marijuana program (though users of medical marijuana have some protection from discrimination under Massachusetts’ handicap discrimination laws) . The bill also does not include any guidance for employers to determine whether one of the four exceptions applies, including how employers are supposed to investigate criminal charges against their employees, but it would charge the Executive Office of Labor and Workforce Development with drafting regulations to enforce the law’s new provisions.
The bill, S. 978, is currently under review by the Joint Committee on The Judiciary. If it does pass, however, the bill would represent the first time Massachusetts has protected employees from adverse action by their employees for legal off-duty conduct. Indeed, there is no law that prevents Massachusetts employers from refusing to employ people who drink alcohol, smoke cigarettes, gamble or have other perceived vices outside of the workplace – this new law would put marijuana in a special category, allowing most employees to use the drug without risking their jobs. As a result, this legislation could set a unique, and troublesome, precedent.
Skoler Abbott will continue to follow this legislation and will report any noteworthy developments.