August 6, 2018

Weed & the workplace

Photo | Edd Cote
Ron Ernenwein, owner of AA Transportation, will immediately fire any employee testing positive for marijuana, as his company follows federal guidelines for drivers.

With cannabis legal to use in Massachusetts since December 2016, a worker could go home and toke up, akin to stopping by a pub for a beer.

Well, not really.

Unlike medical marijuana, employees who indulge in recreational marijuana have no legal recourse if their employers retaliate against them for using the drug in their off-hours.

Despite the changes to the legality of marijuana use, until new employment laws are made or the drug is legalized federally, Central Mass. companies are standing pat in their marijuana policies, whether they be lenient or strict.

That sentiment is hammered home especially for employers adhering to strict guidelines on the federal level, where cannabis is still illegal.

Any driver employed at Shrewsbury-based AA Transportation is drug tested numerous times, including before hiring. After that, drivers are tested in intervals, said owner Ron Ernenwein.

Transportation companies like AA – which has contracts for school buses and does weddings and limo rentals – adhere to regulations from the Federal Motor Carrier Safety Administration, where marijuana is tested for along with cocaine, opiates, amphetamines, methamphetamines and PCP.

The Massachusetts law legalizing and regulating cannabis products didn't include employment protections or clear up the federal illegality, and Ernenwein made that clear to AA's employees.

"We've made them very aware that it's still a federally banned substance," he said.

Ernenwein immediately fires an employee for any positive test.

Medical use is protected

Massachusetts case law does require employers to at least negotiate a set of reasonable accommodations for medical marijuana patients. That ruling came from the Supreme Judicial Court in 2017, saying medical use of marijuana is as lawful as the use and possession of other prescribed medicines.

In that case, Cristina Barbuto was fired from her marketing agency job in 2014 after just one day for testing positive for marijuana, which she used to treat Crohn's disease. She was fired despite raising those concerns with the marketing company before her test.

In the ruling, the SJC said the employer violated state discrimination law protecting handicapped workers who can perform the duties of the job with reasonable accommodation. Now, medical marijuana patients are protected by those same anti-discrimination rules applying to handicapped workers as long as the essential functions of the job can still be performed.

UMass Memorial Health Care, the largest employer in Central Massachusetts with nearly 14,000 employees, treads that line closely.

Marijuana is one of the substances prospective new hires are tested for, and a positive test would pull any job offer for someone without a medical marijuana card. Those with a state medical marijuana card are evaluated through a reasonable accommodation analysis to determine if the medical use of marijuana would impact job performance.

"This is done on a case-by-case basis and in accordance with Massachusetts state law," said Anthony Berry, spokesman at UMass.

Hospital workers are explicitly forbidden to be under the influence of any illegal, legal or prescribed substance while at work.

Berry did, however, leave the door open to the possibility the healthcare network would change its policy as long as it complies with state and federal law.

"UMass Memorial continues to review and revise its policies to ensure compliance with federal and state law, a healthy and inclusive workplace, and safe and high quality care for its patients," he said.

Employers are being cautious to avoid legal challenges, and no civil cases involving someone being terminated or denied a job because of state-sanction recreational marijuana use have caught the eye of the American Civil Liberties Union of Massachusetts.

"We're certainly involved in ensuring the implementation of marijuana law does not infringe upon anyone's civil liberties," said ACLU Field Director Matt Allen.

Allen, who sits on the Cannabis Advisory Board of the Cannabis Control Commission said voters made it clear in November 2016 marijuana should not be treated any different than alcohol.

According to the ACLU, there should be no penalties for cannabis use outside of working hours. As such, someone should be able to use cannabis products even the night before an interview.

Allen said company policies equating marijuana with more dangerous and addictive drugs like heroin and cocaine were not based in evidence. Much of that stigma is changing and the country as a whole is reexamining its views on marijuana.

Still forbidden at work, of course

While employers wait for case law to change their marijuana policies when hiring employees, they're making sure workers aren't high on the job.

According to Chris Geehern, executive vice president of public affairs and communications at the Associated Industries of Massachusetts, companies haven't changed their stance on whether to hire someone who uses marijuana.

With marijuana soon to be as easy to purchase as alcohol or tobacco, companies are now beginning to focus on what happens in the actual workplace rather than the private lives of their employees.

Companies are developing a device to test for impairment due to marijuana and some AIM companies are discussing obtaining those devices to test personnel using heavy equipment.

"If I drink six beers before I have to drive a forklift and someone observes that I'm driving erratically and I appear to be under the influence, the employer is within its right to take some sort of action," he said. "It's really the same with marijuana. If I smoke six joints before I show up to perform surgery and people observe that I'm not functioning on all cylinders, I can be tested and disciplined."

Waiting for guidance

It remains to be seen whether Barbuto's case will carry over to adult use, and now the burden is squarely on employers and how much they want to dig into the lives of their employees, said Robert Young, an employment lawyer with Worcester law firm Bowditch & Dewey.

With the federal illegality of the drug and the lack of any state law, companies are taking a wait-and-see approach.

The largest piece of this conversation, Young said, is the cultural shift away from the Reefer Madness hysteria of decades past.

"That is an issue that employers are really grappling with," he said.

Oxford precision screw machine shop Swissturn has a clear message to its workers: do whatever you want at home, but come to work sober.

Rather than police the private lives of its workers, Swissturn and President Ken Mandile take a careful approach to employee screening. That includes references, job history and stability.

According to the National Institute on Drug Abuse, marijuana can stay in the body for days or even weeks after ingesting, with that period lasting much longer for heavy users.

A test "tells me that they smoked some marijuana sometime in the past," Mandile said. "To me, that doesn't seem like important information."

The company has taken previous action against intoxicated employees, but that hasn't been a problem for several years, Mandile said. The company has no plans to begin drug testing employees, but that could change if legal pot leads to workers being high on the job.


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