Will Massachusetts Employees Be Protected from Firing for Recreational Marijuana Use?

by | Jun 28, 2019 | Business Risk, Cannabis, Commercial Insurance, Employment Law, Risk Advisor Insights, Risk Management

When the voters approved to make recreational marijuana use legal in Massachusetts in 2016, employers immediately wondered how they were going to navigate these waters with their employees. Marijuana still remains illegal under Federal Law, which is putting Massachusetts based employers in a tough spot.

With the first recreational marijuana shops recently opening in the Commonwealth, employers are now faced with the real likelihood that some of their employees are now consuming marijuana products on their own time. How is this going to affect employers that have drug policies in place for their employees? This is not an easy question to answer and it will take some time for the courts to give us some clarity on this issue, but as it stands today here is what we know.

  • Employers can still terminate employees for off-duty recreational marijuana use. Although, the Massachusetts Supreme Court ruled in Barbuto v. Advantage Sales and Marketing, LLC that an employee cannot be fired for medical marijuana use.
  • Employers that are Federal Contractors must follow the Federal Laws when it comes to drug use. It has yet to be determined how the State of Massachusetts Courts would handle an employee of a Federal Contractor who uses medical marijuana.

Earlier this week State Senator Jason Lewis proposed a bill that would clarify this issue. The bill would bar employers from terminating employees who use marijuana outside of work. The intent of this bill seems to be to treat marijuana like alcohol. If this bill passes, it will certainly clarify this issue to some degree. Employers will still have a tough time determining via a drug test if the marijuana was consumed on an employee’s own time.

As this bill progresses through the legislative process we at FBinsure, LLC will update this blog to keep you informed.


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