Nine years after cannabis legalization, today two million Bay State workers and job seekers (the state Cannabis Control Commission reports 35% of Massachusetts adults used cannabis in 2022) risk unemployment for testing positive due to their lawful after-work use of cannabis, without evidence of workplace impairment. The science of cannabis testing that shows a positive result does not demonstrate intoxication when tested, only use within the last month. The injustice of losing work over a test irrelevant to impairment harms not only responsible consumers, but also employers seeking the best workers.

Cannabis use typically effects consciousness for one to two hours, yet metabolites from use in blood, urine, or hair remain test-detectable for weeks after intoxication ends. For alcohol, and illegal drugs like cocaine and heroin, science correlates impairment with positive drug testing when tested. No such test exists for cannabis. Our state Supreme Court ruled in the 2017 Gerhardt case: “… there is as yet no scientific agreement on whether, and, if so, to what extent, these types of tests are indicative of marijuana intoxication.”

To solve the problem of testing unrelated to impairment, identical bills in the state Legislature (S.98 and H.159) would remedy employment discrimination against cannabis users. Seven states from California to Rhode Island already have enacted job protection from cannabis testing similar to S.98 /H.159. These bills have progressed on Beacon Hill with multiple favorable committee reports in 2024 and 2025, showing popular and legislative support for this reform.

S.98 /H.159 would prohibit employers from refusing to hire, terminate, or penalize 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 disables a worker’s job-required licensing.

The bills would allow worker-applicant claims to be managed by the Massachusetts Commission Against Discrimination, a state agency experienced in mediating disability accommodation and other employment unfairness allegations. Agency mediation enables discrimination claim adjudication without the expense of court litigation. An employer, rejecting settlement or a MCAD finding of illegal discrimination, would risk a lawsuit with liability for the applicant-worker’s attorneys fees and lost wages.

These anti-discrimination worker-protection bills deserve floor votes in both chambers of the state Legislature. The risk to two million workers merits prompt State House action.

Despite the indisputable harm these bills address, an obstacle may block action before the legislative session ends this summer. The legislature’s practice with cannabis has been to enact multiple-issue bills related to cannabis, and delay several years before considering new cannabis bills. Differing cannabis industry “modernization” bills passed by the state House and Senate are pending for reconciliation. Those bills would modify existing cannabis laws and oversight, without addressing the irrational employment harm of cannabis tests. Unless constituents advocate for prompt discrimination enactment by the state Legislature, after acting on the modernization bills legislative leaders may consider no other cannabis bills before the current session ends.

Encourage passage of the worker-applicant protection bills now. Contact your state legislators and leadership in the House and Senate to urge votes on S.98 /H.159 this year, independent of the cannabis industry modernization bills.

Michael D. Cutler is a retired attorney who practiced cannabis law, civil and criminal
litigation, and disability law, and helped draft 2016’s successful state initiative Question
4, which legalized adult-use cannabis. He lives in Northampton.