Massachusetts legislators have considered a bill that could end pre-employment testing for marijuana in the state. The bill follows the results of recent court rulings that limited employment testing for marijuana and several marijuana-related legislative efforts.
Massachusetts State Representative Chynah Tyler introduced House Bill 2179 (H 2179) to the state house. This bill intends to prevent discrimination against marijuana users in pre-employment drug testing. However, the bill’s wording makes it stand out from other laws protecting marijuana users.
H 2179 does not directly ban employment-related testing for marijuana. However, as a whole, the law appears to eliminate testing for marijuana for most private employers. According to H 2179, employers cannot test prospective employees for marijuana before offering a conditional offer of employment unless otherwise required by law. In many cases, this requirement only changes when employers would test for marijuana.
However, the law also states that “no employer or agent of an employer may directly or indirectly solicit or require an employee or prospective employee to submit to testing for the presence of marijuana in his or her system as a condition of employment.” This addition could make it unlawful for an employer to require testing as a condition of employment. This contradiction would make the issue of testing for marijuana use before or after issuing a conditional offer of employment moot.
Whether or not an employer would choose to perform such testing before or after issuing such an offer, it would no longer act as one of the conditions of employment. For most Massachusetts employers, this would likely mean the end of marijuana screening in the hiring process.
Massachusetts does not currently have any legislative restrictions on drug testing for employment. However, longstanding court decisions have created limitations, particularly for random drug testing. For example, a 1994 Supreme Judicial Court ruling found that an individual’s right to privacy requires employers to justify legitimate business interests in performing such testing. For medical marijuana users, courts have taken this a step further by requiring employers to provide reasonable accommodation unless they can prove it would create an undue hardship.
Though H 2179 has reached the legislature, it remains uncertain whether it will become law. Regardless of its status, employers should consider reviewing their current hiring processes and prepare to make changes. One area that often requires review is the background screening process. Many employers partner with a trusted background screening company to ensure compliance and effectiveness. The right partner delivers timely, accurate, and compliant reports.
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