Employers Should Carefully Evaluate Their Policies Regarding Drug Testing and Employee Privacy Rights With Respect to Medical Marijuana Use

To date, the principal focus for employers with respect to marijuana use has been in the context of medical marijuana and the relevant disability laws, including potential exceptions to drug-free policies to accommodate workers' medical needs. That issue was front and center in the Massachusetts Supreme Judicial Court's decision in Barbuto v. Advantage Sales and Marketing, LLC, which we reported on in a related legal alert dated July 19, 2017. The Court in Barbuto ruled that patients who legally use marijuana for medical purposes can pursue certain employment claims if they are fired simply because of a positive marijuana test.

A related – but potentially more challenging issue for employers – involves the often accompanying issue of employee privacy rights with respect to drug testing. The trial court in Barbuto allowed an employee who had disclosed her use of medical marijuana prior to a pre-employment drug test to pursue an invasion of privacy claim. That claim was not at issue on appeal but will continue now that the litigation returns to the trial court.

In Massachusetts, an employee's privacy is protected from "unreasonable, substantial, or serious" invasion by her employer. Many other states offer similar protections. When determining whether a drug-testing policy violates an employee's privacy rights, Massachusetts courts balance the employees' privacy interests against the employer's interest in learning whether its employees use drugs. The trial court in Barbuto found plaintiff's privacy could have been invaded because urinalysis is a "significant invasion of privacy" that may have been unreasonable given industry standards and Barbuto's position as a product demonstrator. Thus, the trial court concluded Barbuto's invasion of privacy claim could proceed and, as noted above, that ruling was not appealed.

In light of the potential risk of inviting an invasion of privacy claim, which some plaintiffs' lawyers have tried to assert on a class-wide basis, employers should not necessarily apply zero-tolerance drug testing policies to all applicants or employees and, instead, should consider focusing on "sensitive" positions. "Sensitive" positions may include safety-sensitive jobs (for example, positions that require driving or travel, or operating machinery, as part of the job), customer-facing positions, and positions with access to, or oversight of, the company's confidential or proprietary financial, technological, strategic, human resources, or other business information relevant to the continued success of the company.

Indeed, employers in general, and in Massachusetts in particular, should carefully consider whether their administration of drug tests, including pre-employment testing, post-accident testing or random testing during the course of employment, could be considered an invasion of an employee's or an applicant's privacy. To minimize the risk of an invasion of privacy claim, drug tests should be reasonable, job-related and commensurate with the employees' or applicants' job duties, and with the standards of the business and industry. And, drug testing employees in "sensitive" positions is more likely to be deemed reasonable than testing employees in positions that are not "sensitive."