“The law at this point is silent as to whether off-duty recreational use is restricted in any way,” said Eric LeBlanc, a partner with Cambridge-based Bennett & Belfort and specialist in employment law. “That being said, it’s likely that a company can terminate an employee for off-duty recreational use because of the general employment-at-will doctrine in Massachusetts.”
Unlike some other U.S. states, Massachusetts has no specific laws restricting the ability of private employers to conduct drug tests, beyond basic requirements that drug testing policies be nondiscriminatory and clearly spelled out to employees.
Unlike alcohol, THC — the psychoactive chemical in cannabis — can stay in a person’s system for days or even weeks, long after the buzz has subsided. That means a person who visits a pot shop and legally uses marijuana over the weekend could easily flunk a drug test upon returning to work.
WHAT THE COURTS HAVE SAID
There has yet to be a case involving recreational marijuana and termination of employment make its way through the courts in Massachusetts.
LeBlanc sees litigation as likely in the future, particularly now that cannabis is being sold in stores. One potential legal avenue could be breach of privacy.
Because the law prohibits recreational marijuana from being used in public, he said, that could be interpreted as automatically making recreational use private.
The Massachusetts Supreme Judicial Court did rule last year that employees must seek accommodations for employees who use medical marijuana. The justices decided in favor of a woman whose offer of employment was rescinded by a marketing firm after she tested positive for marijuana. She had previously told the company she used medical marijuana at home to help control Crohn’s disease.
LeBlanc said he could envision a future wrongful termination case brought by an employee who was authorized by a doctor to use medicinal pot but did not register in the state’s medical marijuana program and instead chose to purchase the drug at a recreational pot store.