Worcester Business Journal

wbjournal.com | May 13, 2019 | Worcester Business Journal 21 Be like Uxbridge You can still fire workers for using marijuana V I E W P O I N T E D I T O R I A L T he moment the ballot initiative passed in November 2016 allowing for recreational marijuana in Massachusetts, economic development officials across the state should have been sharpening their pencils. When the formerly black market industry was legalized in other states, it created billions in revenues and millions in taxes. As the Massachusetts industry has been getting up and running, municipal officials should have been figuring out how to best get a piece of that action. Instead, what the majority of Massachusetts communities did was panic with a series of not-in-my-backyard restrictions. More than half have passed temporary moratoriums or bans, according to the Massachusetts Municipal Association, even if the majority of voters in their communities favored the ballot initiative. e result has been most communities have been unreceptive when businesses come calling, or unprepared for the challenges the controversial industry creates. For example, Northbridge didn't have proper zoning set up when it began to field inquiries, and Charlton town officials are divided in the legal battle with a proposed 1-million- square-foot manufacturing facility. But a few communities have figured out how to be opportunistic and add to their tax bases, like Uxbridge, which is home to the state's first small business cannabis owner in Caroline Frankel, and has signed agreements with eight other operators. As Staff Writer Zachary Comeau notes in his "Diamonds in the rough" article on page 14, M assachusetts is now one of nine states to permit recreational marijuana use. Under the state mar- ijuana law, an employer is expressly permitted to prohibit employees from using or being under the influence of marijuana in the workplace. Yet, the law does not address whether an employer can regulate employees' lawful use of marijuana outside of the workplace. With respect to recreational mari- juana use, employers may terminate an employee for off-duty and/or off-site recreational marijuana use because Massachusetts provides no statutory protection for such use. Furthermore, it is unlikely any employee claims al- leging a violation of a right to privacy would be successful. A Massachusetts federal court has previously denied a right to privacy under circumstances where an employee was terminated for vio- lating a company's non-cigarette smoking policy. On the other hand, the use of medical marijuana could raise public policy concerns where an employee is discharged for off-duty medical marijuana use. A 2017 Massachusetts Supreme Judicial Court decision sided with an employee's reasonable accommodation claim where the employee had been terminated aer testing positive as a result of marijuana use for Crohn's disease. ese considerations raise questions as to how Massachu- setts employers can manage employees using recreational marijuana while avoiding legal risks. Massachusetts employ- ers will likely have the right to terminate an employee using recreational marijuana even when consumption occurs off-duty. In order to minimize the risks of a wrongful termi- nation claim, employers should consider policies to make it clear 1) on-the-job marijuana consumption, or being under the influence of marijuana, remains against company policy, and 2) off-duty recreational consumption may result in discipline or termination of employment. If employers wish to include a zero-tolerance drug testing policy, then a policy should clearly define illegal drugs as those banned under federal law (thereby including marijuana) and make it clear the drug test will screen for marijuana. Conversely, as recreational use becomes more prevalent, talent pool considerations may favor loosening drug testing policies, at least for certain positions. Employers may want to consider whether it makes sense for their business to relax drug policies. With these considerations in mind, employers may choose to eliminate standardized testing policies and rely only upon testing for reasonable suspicion the employee is under the influence at work. Similarly, some employers may limit marijuana testing to safety-sensitive occupations, such as operating heavy machinery. Employers with concerns about the new law and its effect on workplace procedures and handbook policies should consult with counsel about these important issues. Kurt Binder is a partner at the Worcester law firm Seder & Chandler, specializing in commercial litigation, employment law and general business practice. BY KURT BINDER Special to the Worcester Business Journal Kurt Binder Uxbrigde officials didn't have to do much to entice those businesses. When entrepreneurs like Frankel came calling, they simply listened and offered help and encouragement. Larger cities like Worcester were always going to get a healthy number of marijuana business applying for the limited number of licenses. And like Uxbridge, Worcester was proactive in courting the industry and is even outpacing Boston for the number of host community agreements and open retail stores. But that level of industry was never guaranteed for a community like Uxbridge, which has struggled to establish a new economic footprint as its industrial sector faced an inevitable decline. Athol, too, has been more open-handed with the marijuana industry, and cannabis cultivator MassGrow LLC has fulfilled Town Manager Shaun Suhoski's five-year-old goal to find an occupant for the Union Twist Drill building, which the manufacturing firm le more than 30 years ago. By being ready and welcoming, communities like Uxbridge and Athol have positioned themselves as frontrunners as recreational marijuana moves out of its startup phase. Although the rollout has been slower in Massachusetts compared to other states with legalized cannabis, those other states have proven there is a limit to how much the marijuana industry can grow, which can lead to a reduction in viable businesses. A business with a longer history of operating in Massachusetts will have a better chance of surviving and thriving in the industry than those coming later to the game. The Worcester Business Journal welcomes letters to the editor and commentary submissions. Please send submissions to Brad Kane, editor, at bkane@wbjournal.com. A T H O U SA N D WO R D S B Y D O N L A N D G R E N W W

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