Pot Shops Open, but Workers Can Still Be Fired Over Weed in Mass.

The long-awaited opening of the first recreational marijuana stores in Massachusetts was cheered by cannabis enthusiasts and entrepreneurs, but it doesn’t change the reality that workers can be fired or face disciplinary action from employers for marijuana, even when they use pot outside work, on their own time.

Also, you can still lose out on getting a job if a pre-employment drug test reveals marijuana in your system.

The situation remains complicated by the continuing federal prohibition on marijuana and the state-by-state patchwork of medical and recreational cannabis laws, experts say.

WHAT THE LAW SAYS

The 2016 ballot question approved by Massachusetts voters that legalized recreational marijuana included language stating that the law “shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.” In other words, the law did not supersede existing policies of private employers, including the ability to administer drug tests randomly or as a condition of employment.

The start of commercial marijuana sales doesn’t change the law but raises additional questions about weed and the workplace, legal experts say.

“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.

WHAT EMPLOYERS ARE DOING

Experts say there is anecdotal evidence that companies, in Massachusetts and in other states, are re-examining their policies around marijuana use.

Some are dropping THC from drug tests required of prospective employees, or limiting testing to safety-sensitive occupations, such as people who work in public transportation or operate heavy machinery.

“One of the things that I try to remind employers and employees when it comes to recreational cannabis is we need to think about it in the same way as being able to buy alcohol legally if you are 21 years or older,” said Michelle Lee Flores, who specializes in labor and employment cases as a partner with the Los Angeles-based Akerman law firm.

Most important, Flores said, is that employers educate and clearly communicate to their managers the company’s policies around marijuana use and drug testing. She cited initial confusion in California when commercial pot shops opened Jan. 1 with some people mistakenly believing employers could no longer take action against marijuana use that was otherwise legal.

LeBlanc sees some employers transitioning from a universal drug-testing policy to an “evidence-based” system triggered by reasonable suspicion that a worker is impaired by marijuana use.

“Every employer,” he said, “does need to revisit their employee handbook.”