Worcester Business Journal

8 Worcester Business Journal | August 6, 2018 | wbjournal.com Employers struggle to square new law with drug-testing policies & the WEED BY ZACHARY COMEAU Worcester Business Journal Staff Writer Recreational vs. medical marijuana use workplace W ith 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. at sentiment is hammered home es- pecially for employers adhering to strict guidelines on the federal level, where cannabis is still illegal. Any driver employed at Shrews- bury-based AA Transportation is drug tested numerous times, including before hiring. Aer 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. e 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 em- ployee 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. at 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 aer 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 em- ployer violated state discrimination law protecting handicapped workers who can perform the duties of the job with reasonable accommodation. Now, med- ical 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 Massachu- setts 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 mari- juana card. ose with a state medical marijuana card are evaluated through a reasonable accommodation analysis to determine if the medical use of marijua- na would impact job performance. "is is done on a case-by-case basis and in accordance with Massachusetts state law," said Anthony Berry, spokes- man 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 ensur- ing the implementation of marijuana Legal in Massachusetts? Since 2016 Since 2012 Illegal on the federal level? Yes Yes Users protected against employment discrimination? No Yes Recreational Medical marijuana use marijuana use Ron Ernenwein, owner of AA Transportation, will immediately fire any employee testing positive for marijuana, as his company follows federal guidelines for drivers.

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