Bills would prohibit employers from refusing to hire, terminating, or penalizing based solely on a cannabis-positive test
Nine years after state voters legalized cannabis, today two million Bay State workers and job seekers risk unemployment for testing cannabis-positive due to their lawful after-work use, without evidence of impairment on the job. Cannabis Control Commission reporting has shown that as many as 35% of adults in the commonwealth used cannabis over the course of a year.
The science of cannabis testing shows that a positive result does not demonstrate intoxication when tested, only use within the last month. This injustice of losing work over a test irrelevant to impairment harms not only responsible consumers, but also to employers wanting the best workers. This is a problem, but there is remedial legislation pending in the state legislature.
A positive cannabis test fails to measure impairment
Cannabis typically affects consciousness for only one to two hours, yet traces of its metabolites—in blood, urine, or hair samples—from use remain test-detectable for weeks after intoxication ends. While science correlates impairment with positive drug testing for alcohol (and for illegal drugs like cocaine and heroin), no such test exists for cannabis. As the Massachusetts Supreme Judicial Court ruled in the 2017 Gerhardt case: “[T]here is as yet no scientific agreement on whether, and, if so, to what extent, these types of [drug impairment] tests are indicative of marijuana intoxication.”
Solving the problem of testing unrelated to impairment
Identical bills pending in the state legislature—S.98 and H.159—would remedy the unfairness of employment discrimination against lawful cannabis users based on cannabis testing that does not measure impairment.
Currently, seven states from California to Rhode Island already have enacted consumer job protection from positive cannabis testing similar to the legislation pending in Mass. These bills have progressed with favorable committee reports in 2024 and 2025, showing broad popular and legislative support for this reform.
How employment discrimination protection would work
H.159 (sponsored by Rep. Kushmerek of Fitchburg) and S.98 (sponsored by Sen. Oliveira of Ludlow) would prohibit employers from refusing to hire, terminating, or penalizing an applicant-employee based solely on a cannabis-positive test, absent a reasonable suspicion of impairment at work. Employers could defend a claim of illegal discrimination with evidence of intoxication at work, or if a positive test results in a worker’s inability to maintain job-required licensing.
Drug-test discrimination claims would be handled by the Massachusetts Commission Against Discrimination (MCAD), enabling worker-applicants and employers to use a state agency experienced in mediating disability accommodation and other employment unfairness claims. Agency mediation enables discrimination claim settlement without the expense of formal litigation. An employer rejecting settlement or MCAD mediation of a valid testing-discrimination claim would risk a lawsuit with liability for the applicant-worker’s attorneys fees and lost wages.
The need for advocacy now
These anti-discrimination worker-protection bills deserve floor votes in both houses of the state legislature.
Standing in the way of legislative action, however, is the reconciliation of differing cannabis industry “modernization” bills passed by the state House and Senate, which would modify existing licensing laws but ignore the employment harm of irrational cannabis drug tests. The legislature’s practice with cannabis has been to enact multiple-issue bills related to cannabis, as are pending now, and delay several years before considering new cannabis bills.
Encourage action on the employment protection bills now by contacting your state legislators and leadership in both houses, urging the passage of S.98 and H.159 independently of the cannabis modernization bills.
Author’s note: I am a retired attorney (1973-2020) who practiced cannabis law, civil and criminal litigation, and disability law. I helped draft 2016’s Question 4, which legalized adult-use cannabis. From 2011 to 2020, I represented state license and municipal permit applicants in the medical and adult-use cannabis industries at the Department of Public Health, the Cannabis Control Commission and municipalities. I delivered education programs on state and federal cannabis law to state legislators, lawyers and healthcare providers.
