Vol. 23 No. 25- Massachusetts Marijuana Law Creates Concern

December 29, 2008

The following article indicates the concern Massachusetts law enforcement has about the potential impact their new marijuana law might have on testing and/or disciplining employees for use of marijuana.  Although this is not dealing with medical marijuana, their concerns are similar to those expressed in California and other states, regarding the use of marijuana by employees, when the violation is reduced to a minor offense.

It appears that their new law is more lenient than that of California.  Here, possession of less than one ounce is treated the same as an infraction – a minor fine and no arrest.  In Massachusetts, it appears that any amount of marijuana is subject only to a minor fine.  The issue is whether those involved in public safety roles (eg. bus drivers, train operators, law enforcement personnel, etc.) can be terminated from employment for use of the drug.

As you may recall, that issue has been resolved in California as a result of the California Supreme Court ruling last January in Ross v. Ragingwire Telecommunications, Inc. (see our Client Alert Memo, Vol. 23, No. 2, 1/28/08).  In that case, the Supreme Court ruled that even the use of medical marijuana, with a doctor’s recommendation, does not prevent an employer from terminating that person from employment.

The Court stated that the California Compassionate Use Act does not give “marijuana the same status as any legal prescription drug,” and “no state could completely legalize marijuana for medical purposes because the drug remains illegal under Federal law.”  The Court also noted that if marijuana use conflicts with the employer’s policies, “FEHA does not require employers to accommodate the use of illegal drugs.”

I am forwarding this information to my colleague in Massachusetts, Jack Collins, Counsel for the Massachusetts Police Chiefs Association. Although our Supreme Court decision has no direct effect in their state, they can cite to it as a basis of their argument to allow restrictions on the use of marijuana by employees – certainly, public safety employees.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com

Massachusetts Pot Law Could Hurt Police Testing Policy
December 26, 2008

The Boston Herald

Lexis Nexis

A voter-approved law reducing possession of small amounts of marijuana to a civil offense threatens to unravel drug testing of police and other public employees, the Herald has learned.

The law, which goes into effect Jan. 2, prohibits government agencies and authorities from enforcing any punishment for pot possession with a fine greater than $100, according to the Massachusetts Police Chiefs Association, and defines possession so broadly as to include traces of pot in blood to urine to hair and fingernails.

“This very much threatens to undermine our ability to do the drug testing we do,’ said Jack Collins, an attorney for the Massachusetts Police Chiefs Association.

Collins is calling for police departments to stop drug testing certain employees until the Legislature can explicitly allow public employees who fail drug tests to be punished. Without swift action, police departments and other agencies face lawsuits from unions protecting their members, Collins said.

“At this point, it looks like a violation of their rights, and then there’d be a lawsuit and it would cost thousands of dollars,’ he warned.

Berkshire District Attorney David Capeless predicted the new law has far-reaching consequences for even school bus drivers and MBTA train operators, who could point to the law and say they can only be fined, not fired, for marijuana offenses.

“People given the critical job of looking after children or the general public, there’s a greater risk now they could be high,’ Capeless warned.

Concerns about the viability of punishing people for flunking drug tests follow news reports of drug use by public workers. The Herald found that 77 MBTA employees have failed substance-abuse tests over the past three years.

A task force set up by Public Safety Secretary Kevin Burke is examining the implications of the new law and how it will be enforced. Burke’s office is expected to provide answers to questions of drug testing by year’s end.

Meanwhile, the Boston Police Department plans to continue drug testing regardless of any uncertainty, said Elaine Driscoll. “Enforcing our drug policies is non-negotiable,’ Driscoll said.