Massachusetts Bill Could End Pre-Employment Marijuana Testing

Forbes

21-03-2025

If Massachusetts passes H. 2179, pre-employment marijuana testing will all but disappear, forcing ... More employers to rely on new strategies for managing cannabis use in the workplace.
For years, Massachusetts employers have grappled with an evolving legal landscape around marijuana in the workplace. Medical cannabis has been legal for more than a decade, with recreational use following shortly thereafter. Yet, despite these shifts, employers have retained broad discretion in how they screen job applicants for marijuana use. That could soon change.
A bill now under consideration, H. 2179, would prohibit most pre-employment marijuana testing, marking a significant departure from current practice. But what makes this bill particularly unusual isn't just the ban—it's the way it's written. The proposed law states that an employer may only test a prospective employee for marijuana use after a conditional offer of employment has been extended. That seems straightforward enough. But in the next breath, it goes on to say that no employer may require a prospective employee to submit to marijuana testing as a condition of employment. This raises an obvious question: if an employer can only test after extending a conditional offer, but cannot make passing that test a condition of employment, what's the point of testing at all?
The bill, if passed, would put Massachusetts in the company of jurisdictions like New York, Minnesota, Philadelphia, and Pittsburgh, where pre-employment marijuana screening has been significantly curtailed if not outright banned. It would also force employers to rethink long-standing drug testing practices that have been widely used across industries. The impact could be substantial, particularly for employers who rely on zero-tolerance drug policies or operate in industries where testing for marijuana remains a standard hiring practice.
While H. 2179 is still under consideration, it reflects a broader national shift away from marijuana testing in employment decisions. Massachusetts currently has no state law specifically regulating drug testing in private employment, but court rulings have shaped the way employers approach workplace drug policies.
In Webster v. Motorola, the Massachusetts Supreme Judicial Court ruled that random drug testing must be justified by the employer's business interests and weighed against the employee's right to privacy. That ruling established that an employer could conduct random drug tests for an account executive who drove 25,000 miles per year, but not for a technical editor, whose work posed no immediate safety concerns. The message was clear: the justification for workplace drug testing matters.
Medical marijuana users have even greater protection. In Barbuto v. Advantage Sales, the state's highest court ruled that employers must consider reasonable accommodations for employees who use medical marijuana, treating it like any other prescribed medication—unless the employer can demonstrate an undue hardship. Employers cannot rely on zero-tolerance drug policies to justify termination or refusal to hire a qualified medical marijuana patient.
Recreational marijuana use, on the other hand, has received far fewer protections in Massachusetts. State law explicitly states that employers do not have to accommodate recreational use, which has allowed companies to enforce drug-free workplace policies without running afoul of anti-discrimination laws.
H. 2179, however, could blur those lines by severely restricting when and how marijuana testing can be used in hiring decisions—regardless of whether the candidate is a medical or recreational user.
Employers in Massachusetts will face an immediate need to revise drug screening policies. Under the proposed law, employers would no longer be able to conduct pre-employment marijuana testing for most roles. The language of the bill makes it clear: an employer may only test after making a conditional job offer, but cannot make passing that test a condition of employment. In practice, this means that unless an employer falls under a specific exception, the results of a marijuana test would be functionally irrelevant.
Employers who still wish to test must ensure they fall into one of the limited exceptions outlined in the bill. Testing would still be allowed for employees in safety-sensitive positions, which the bill defines as jobs where impairment could cause immediate and permanent physical injury or loss of life. Federal law also remains a critical factor—if a company is subject to federal drug testing requirements, such as the Department of Transportation's regulations for commercial drivers, those requirements would take precedence over state law.
For most employers, however, the key takeaway is clear: pre-employment marijuana testing would no longer be a viable hiring tool in Massachusetts.
As more states move away from pre-employment marijuana testing, some employers have sought alternative ways to ensure workplace safety. The problem? Most drug tests detect past use, not impairment. Unlike alcohol, which can be measured with breathalyzer tests that correlate directly with impairment levels, marijuana can linger in the body for days or even weeks—making it difficult for employers to determine whether an employee is currently impaired or simply used cannabis off the clock.
This shift has already led some employers to rethink how they assess impairment, opting for behavioral assessments often supported by oral fluid screening to detect near-contemporaneous use rather than relying on traditional urine or hair tests. If H. 2179 passes, Massachusetts employers may have to follow suit, investing in supervisor training programs and developing clearer impairment protocols to maintain safety standards while remaining compliant with state law.
Even though H. 2179 has yet to become law, employers who conduct drug testing in Massachusetts should take steps now to prepare for potential changes. This includes:
If Massachusetts passes H. 2179, pre-employment marijuana testing will all but disappear, forcing employers to rely on new strategies for managing cannabis use in the workplace. The bill's contradictory language—allowing testing after a conditional offer but banning it as a condition of employment—adds another layer of complexity.
For employers, the challenge isn't just complying with the law but adapting to a world where marijuana use is increasingly normalized. The key will be finding new ways to maintain safety and productivity—without relying on outdated testing policies that could soon be off-limits.