There are no laws in Massachusetts restricting or prohibiting drug testing. Massachusetts is a “mandatory” state, which means any private employer wishing to conduct drug and/or alcohol testing of non-regulated employees within this state must do so according to the Constitution, statutes, regulations and court decisions that apply. (The rules)
The rules in Massachusetts do not derive from a statute specifically directed at limiting workplace drug testing. No such statute exists in Massachusetts. Instead, Massachusetts’s rules stem from related court decisions.
Massachusetts has a narrow privacy law which can impact workplace drug testing. Court decisions also have been decided regarding privacy issues that can also impact workplace drug testing.
The impact mentioned is with random testing. This would not affect DOT required random drug testing. Case law in Massachusetts suggests that workplace random drug testing in Massachusetts should be limited to safety-sensitive workers or other circumstances in which the employer can show a legitimate business necessity.
A case in 1994 with Motorola, Inc ruled that random testing should be limited to workers in safety-sensitive positions with reference to the Massachusetts Privacy Act. Another case in 1994 with Tech Tool Grinding & Supply, Inc. ruled in favor of the employer’s concern for safety in the workplace vs. the employee’s expectation of privacy.
We see the court rulings in Massachusetts balancing the employee’s rights to privacy with the employer’s concern for safety or a legitimate business necessity. The Massachusetts Supreme Judicial Court has made it fairly clear that private employers in this state can require drug and/or alcohol tests if in balance with safety as a priority. Absent a clear safety issue testing is limited to cases where there is reasonable suspicion of drug or alcohol use or possible impairment.
Unemployment claims can be denied when an employee is terminated based on a positive drug or alcohol test. Illegal drug use while at work or drunkenness while at work shall be considered deliberate misconduct. The discharged employee shall be ineligible for benefits without regard to whether or not the employer had a written policy against such conduct. Note that the written policy is highly recommended.
Medical Marijuana in the Workplace: The law states that “Nothing in this law requires any accommodation of any on-site medical use of marijuana in any place of employment, school bus or on school grounds, in any youth center, in any correctional facility, or of smoking medical marijuana in any public place.” DOT testing prohibits marijuana use period, no exceptions.
- Can employers in Massachusetts continue to have a drug testing policy? Yes
- Can an employer in Massachusetts test for marijuana? Yes
- Can an employer in Massachusetts discipline a medical marijuana patient who tests positive for marijuana? Yes (If requirements of state drug testing law are met). The company must have a written drug free workplace policy that is followed.
Drug Free Workplace in Massachusetts
The following is a guide for a legally defensible drug testing program in Massachusetts. These provisions should be included in a written company drug free workplace policy.
- Who will be tested and when?
- Pre-employment testing: All individuals applying for employment will be tested once an offer of employment has been made. In this regard the Company’s General Substance Abuse policy will be followed. All applicants will not be allowed to begin work until drug test results have been reported.
- Reasonable suspicion: Any employee suspected of using or being under the influence of a controlled substance or alcohol will be removed from their assigned duties and must submit to a drug or alcohol test. Procedural steps will be provided in the event that such a test is needed.
- Post accident: Post-accident testing will occur only if there is reasonable suspicion of drug or alcohol use or possible impairment. Testing based on the mere happening of an accident will not trigger a test.
- Random testing: Limited: Where safety is a real issue random testing of safety-sensitive job positions may occur. Additional testing under appropriate circumstances may be required as the Company deems necessary.
- What will the Company test for?
- The Company will test for those illegal drugs or alcohol as circumstances warrant. The Company’s general policy will be followed and illegal drugs to be tested will be listed. This state recognizes the medical use of marijuana. The Company will follow state rules as it relates to this subject.
- Where will tests be done?
- Collection Sites and/or
- At employer site
- The Company drug free workplace written policy will outline the specific consequences for a refusal to test or a positive test.
- All information related to a drug or alcohol test will be maintained in confidence and results will be shared only with those who have a business-related need to know.
For expert consultation on drug free workplace policy or Massachusetts Laws on Drug Testing call Joe Reilly at National Drug Screening 321 622 2020.