CHANGE IN MARIJUANA LAW EFFECTS ON THE WORKPLACE
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GENDER IDENTITY ISSUES IN THE WORKPLACE
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David R. Kerrigan, Esq.
Legal Advisor to ACA NE
Kenney & Sams, P.C.

On December 15, 2016, recreational marijuana use became legal in Massachusetts. The law legalizes the use and possession of up to one ounce of marijuana in public and up to 10 ounces of marijuana at home for individuals 21 and older. The law also permits possession of up to six marijuana plants per person, with a maximum of 12 plants allowed per household.
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What Does this Change Mean for Employers?
 
The new law permits the recreational use of marijuana for those over 21, but it does not create an absolute “right” to use or possess marijuana.  As a result, employers remain free to prohibit the use of marijuana in the workplace and remain free to require a drug-free workplace.   The law specifically states that it does 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.” 
Further, the new law expressly prohibits marijuana smoking anywhere that cigarette smoking already is prohibited.  As a result, any policies employers already have in place concerning smoking cigarettes on or around the premises will automatically extend to smoking marijuana.

Employers Subject to Certain Federal Requirements
 
Marijuana possession remains a criminal offense under federal law so employers that have federal contracts or receive federal funding are subject to the federal Drug Free Workplace Act and are required to establish and promulgate policies for a drug-free workplace. Drug testing is not mandated under the Act.  However, covered employers must adhere to other requirements including publishing and distributing the company’s anti-drug policy to employees, establishing an awareness program informing employees of the risks of drug use, and notifying the federal contracting agency of any employee drug convictions.
 
Additionally, employers whose business activities extend into the federally regulated transportation industry are subject to federal Department of Transportation requirements concerning workplace drug and alcohol testing, including requirements that employers take immediate corrective action if certain types of employees test positive for drugs. The DOT imposes such requirements for employees in the aviation, railroad, mass-transit, and pipeline industries, employees operating commercial vessels, and for carriers and commercial driver’s license holders. Similar policies regulating employee drug and alcohol use are mandated for companies that perform work for the Nuclear Regulatory Commission, the Department of Energy, and the Department of Defense.

What About Medical Marijuana?
 
The state’s highest court, the Supreme Judicial Court, recently held that the Massachusetts anti-discrimination statute requires an employer to determine if it can accommodate an employee’s use of medical marijuana. While the lower court found, consistent with other jurisdictions’ laws, that our state’s disability statutes do not extend to medical marijuana use because marijuana remains illegal under federal law, the Supreme Judicial Court of Massachusetts disagreed.  It found that the employer needed to engage in an interactive process with the employee to see if the employer could accommodate the employee’s medical marijuana use outside of the workplace.  As a result, an employer may need to allow its use for medical reasons unless the employer can justify why it is unreasonable to accommodate off site marijuana use.  This may not be easy to do. 

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As the human resources director at a medium sized construction company of 150 employees, you deal on a daily basis with all types of employee issues. One day, Jill, who works in the field as a technician, comes into your office and discloses that she identifies as a man and has begun the transitioning process.  Jill lets you know that he will change his name to Bill in several months. After listening to him and being as empathetic as possible, you are concerned that Bill’s co-workers in the field may not be as empathetic and open minded as you are.  While you may be able to control most of your employees, you are also concerned of potential comments and attitudes of other companies’ employees at the work sites.  As a result, you recommend Bill return to duty in your company headquarters’ workshop out of concern for the level of expected comments. Is this recommendation consistent with our state’s discrimination laws?  
 
Unless the employee specifically asks to be transferred, this recommendation likely violates Massachusetts discrimination laws. Massachusetts added gender identity to the list of protected classes under our state’s discrimination laws in 2012.  Those laws prohibit treating people differently regarding matters relating to compensation or on the terms and conditions of employment because of the person’s protected class such as race, gender, sexual orientation, and gender identity, among others.  This transfer involves a significant change in duties and may function as a demotion, so it likely affects the terms and conditions of the person’s employment. When the company bases an adverse employment action such as this on an employee’s protected class status, the law is violated. Your company could not transfer all female or minority employees to the office out of any concern for stray comments or unequal treatment, and it likewise cannot do so based on any employee’s gender identity. 
 
Discrimination against a transgender person can take a number of forms in addition to transferring them out of a concern over anticipated comments. According to the Massachusetts Commission Against Discrimination, it can include a refusal to call the employee by their by chosen name or a refusal to refer to them with the correct pronoun.  In addition, denying them the ability to use a bathroom or a locker room of their chosen gender can also be an act of discrimination. Denying the employee the opportunity to attend weekly meetings; failing to accommodate reassignment surgery; or teasing for mannerisms or for appearance can also constitute harassment or discrimination.  Of course, requiring them to appear or dress as their biological gender can be discrimination.
 
So what do you do when faced with this situation? Understanding that revealing this to you must not have been easy is a good first step.  Obtain information on when the person intends to make known their transition or when they will start appearing as the gender they identify with so you can educate the workforce on the employee’s transition.  Training the company’s co-workers on discrimination then becomes very important.  The co-workers need to understand that their co-worker’s gender identity is a protected class just the same as one’s race or ethnic background and that discrimination will not be tolerated.
  
In a written guidance on gender identity discrimination, the MCAD refers to one company facing this situation which had its president meet with the staff to convey that the employer will not tolerate discrimination directed to the person; disciplined an employee who sought not to work with the employee; and promptly changed the employee’s name on company records to reflect the person’s name change as evidence supporting the company’s position that it did not subject an employee to a hostile work environment.   
  
All of these and other steps should be considered and implemented by any company facing this situation. The failure to recognize the significance of the employee’s transition to another gender can result in a violation of the discrimination laws by the company and any of its employees who participate in any prohibited conduct.