United States: Massachusetts Recreational Pot Regulations Offer Little Guidance To Employers

On March 9, 2018, the Massachusetts Cannabis Control Commission ("CCC") filed its much anticipated recreational marijuana Regulations with the Massachusetts Secretary of State. According to the CCC, the Regulations are on track to be published in the Massachusetts Register on March 23, 2018. The Regulations will become effective upon publication. While the Regulations are comprehensive in many ways, for most employers the Regulations are most notable for what they lack, namely guidance regarding employer-employee rights and responsibilities.

Here is a link to the CCC's website, where the final Regulations are available under the "Public Documents" tab. The Regulations will also be located in the Code of Massachusetts Regulations at 935 CMR 500.000, et seq.

What The Regulations Include

The copy of the final Regulations available at the CCC's web site consists of 102 pages. It reflects hard work, thoughtfulness, and input from a variety of stakeholders and experts. Presumably by design, the Regulations focus heavily on licensing, manufacturing and sales, operations, and safety. For example, the regulations detail how Marijuana Establishments (which include marijuana cultivators, manufacturers, retailers, and transporters, among others) must:

  • undergo a rigorous application and qualification process;
  • pay varying application and annual license fees;
  • apply for registration with the CCC for all of their directors, executives, managers, employees, and volunteers;
  • refrain from delivering marijuana products to consumers or allowing consumer consumption of marijuana on-site;
  • implement written operating procedures, including procedures regarding safety and sanitation;
  • package, label and transport marijuana responsibly;
  • train employees;
  • market and advertise responsibly, without appealing to individuals under the age of 21;
  • sell marijuana in certain limited amounts per transaction;
  • retain certain detailed records; and
  • allow CCC investigations and inspections.

What The Regulations Lack

Absent from the Regulations is any specific, concrete guidance to most employers regarding employer-employee rights and obligations around recreational marijuana use. Indeed, for employers who are not also Marijuana Establishments, the Regulations provide little clarification regarding the recreational marijuana law's implications. Readers may recall from our November 14, 2016 client alert about the Massachusetts recreational marijuana use law (available here) that the law states that it "shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees." This language means that employers do not have to permit employee use of marijuana at work or while working. But the Regulations–like the recreational use law itself–says nothing about employer-employee rights or obligations regarding off-site and off-duty employee use of recreational marijuana. The Regulations do not state that:

  • employers must allow off-site or off-duty employee use of recreational marijuana;
  • employers cannot fire (or refuse to hire) someone because of recreational marijuana use;
  • employees or applicants can sue employers who take adverse action against them because of recreational marijuana use; or
  • employers are subject to penalties for taking adverse action against employees or applicants because of recreational marijuana use.

In fact, the word "employers" appears once in the Regulations in the text of the following statement: "Nothing in [the Regulations] shall be construed to limit the applicability of other law as it pertains to the rights of . . . employers . . . , except as otherwise provided in [the Regulations]."

Of course, employers must be careful to distinguish between the Massachusetts recreational marijuana use law and the Massachusetts medical marijuana use law. As noted in our July 20, 2017 post (available here), the Massachusetts Supreme Judicial Court ruled that, as a result of the Massachusetts medical marijuana use law, certain employers may have to accommodate employees' disabilities by permitting off-site and off-duty use of medical marijuana.

Simply put, the Regulations offer little guidance, good or bad, to non-Marijuana Establishment employers. At this point, it is unclear whether the Massachusetts recreational marijuana use law will result in employment litigation and, if so, how litigation will play out in the courts. In the meantime, employers would be wise to proceed with caution, and with guidance from experienced employment counsel.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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