“At risk without statutory protection are more than one million legal Massachusetts cannabis consumers.”
On Tuesday, members of the Massachusetts legislature’s Joint Committee on Cannabis Policy heard testimony on a range of bills. In addition to our regular coverage of hearing, we are publishing some individual testimonies. The following comes from Michael Cutler, a longtime Massachusetts-based cannabis attorney who formerly served on NORML’s legal committee. Among other bills that he submitted testimony on, this is Cutler’s take on the identical House and Senate Acts prohibiting employment discrimination based on the legal use of cannabis. -TJM Editors
I am a retired attorney who worked with the statewide ballot initiative campaigns to decriminalize cannabis in 2008 and legalize medical cannabis in 2012. In 2015 I was a member of the team that drafted Question 4, which succeeded in 2016 to legalize adult- use cannabis. I also worked with Senate leadership and members of the conciliation committee that drafted [statutes] ultimately replacing Q4 with new cannabis laws.
From 2011-2020 I represented state license and municipal permit applicants and licensees in the medical and adult use cannabis industry, at the DPH (which regulated medical cannabis from 2013-2018), the Cannabis Control Commission, and municipalities. I also submitted public comments in the development of industry regulations by the Department of Public Health and the CCC. Since retiring in 2020 I helped draft, and filed legislative testimony on, bills involving the industry and consumers.
I write in support of these identical bills with a suggested amendment. At risk without statutory protection are more than one million legal Massachusetts cannabis consumers who risk job termination or rejection from a cannabis-positive drug test. That risk merits statutory relief because the science of drug testing and impairment is clear: A positive cannabis drug test is not correlated with current (at the time of testing) impairment.
The Problem H159 and S98 Seek to Remedy
Most cannabis use impairs consumers for an hour or two, but the evidence of use – the presence of cannabis metabolites in the blood, urine or hair samples – can remain for weeks, detectable by cannabis drug tests long after impairment ends.
Adult use of cannabis was legalized in Massachusetts in 2016, yet today the prevalence of pre- or mid-employment drug testing puts lawful cannabis-using employees at risk of application discrimination or loss of jobs, without evidence of job-site use or impairment during working hours.
Amending the Bills to Better Achieve Protection from Employment Discrimination
The bills would properly amend the section of the state anti-discrimination law – G.L. c. 151B, sec. 4 – that identifies unfairly discriminatory employment practices. They add unnecessary text regarding “safety sensitive position[s].” Thus I urge the amendment of the bills to eliminate the bills’ section 1, and the last sentence of section 2.
Existing state employment discrimination law – c. 151B, sec. 1(16) and 4(16); see Godfrey v. Globe Newspaper Co., Inc., 457 Mass. 113, 119-120 (2010), cited with approval, Barbuto v. Advantage Sales and Marketing, LLC, 477 Mass. 456, 463 (2017) – already removes termination protection for employees unable to perform “essential job functions” – including safety sensitive positions – where no reasonable employment accommodation is possible without unduly burdening the employer.
For the past eight years the Barbuto case – 477 Mass. At 463-466 – has controlled the employment of Massachusetts medical cannabis patients, without the bills’ exception for “safety sensitive positions” (which would eliminate Barbuto protection for medical cannabis patients). Under Godfrey and Barbuto a cannabis user’s ability to perform a safety sensitive job is evaluated on a case-by-case basis. If a cannabis user’s job can be reasonably accommodated, to enable the worker to perform the essential functions of a safety sensitive job without unduly burdening the employer, no safety- sensitive benefit is served by the bills’ text depriving the cannabis user of employment discrimination protection.
The bills both permit employment termination where “reasonable suspicion exists that the employee was impaired by marijuana at the employee’s place of employment or during the hours of employment.” Thus – even with amendments eliminating the “safety sensitive position” provisions – adult cannabis users applying for or performing safety sensitive jobs still can be denied employment if no reasonable accommodation exists to enable the applicant’s performance of the job’s essential functions; or terminated if reasonably suspected of impairment while working or at the job site.
Finally I cite to this Committee, last session’s favorable action on an almost identical bill – 2023’s H1941 – which was favorably reported out of the Joint Committee on Labor and Workforce Development on May 16, 2024 to the House Committee on Policy and Scheduling; the bill was ordered to a third reading on May 30, 2024, but failed to receive further action before the end of the legislative session. That Committee’s favorable action on 2023 H1941 merits this Committee’s serious consideration of H159 and S98.
Accordingly I urge the amendment of these bills – to eliminate as described above their “safety sensitive position” provisions – and as amended, to be reported favorably by this Committee.
