Companies Couldn’t Fire Workers for Off-Hours Marijuana Consumption Under Proposed MA Law

It’s legal for adults 21 years and older to smoke marijuana in Massachusetts. It’s also legal for employers to fire workers for testing positive for pot use — even though they aren’t impaired at work.

Source: Boston Globe - Dan Adams | Published on December 28, 2018

hand rolled cannabis joint

Seeking to bring workplace law into the era of recreational cannabis, state Senator Jason Lewis plans to introduce legislation next month that would prevent workers from losing their jobs solely for consuming marijuana on their own time.

If the new measure is enacted, pot would be treated more like alcohol: Employers would still be permitted to dump workers who show up high but could no longer police their private, legal consumption of the drug. An exception would allow companies that contract with the federal government to continue drug-testing and firing workers who consume marijuana if failing to do so would jeopardize their business.

“This is not intended to be a blanket protection for people to use cannabis whenever and wherever they like,” said Lewis, a Winchester Democrat. “But as long as they’re not impaired and it’s not impacting their work, employers should not be able to discriminate against them in hiring or promotion, and companies certainly should not be terminating people simply because they legally use marijuana on their own time.”

The exact language of the legislation is still being drafted, and its political prospects remain uncertain.

Critics of the status quo note that some tests can detect traces of cannabis weeks or even months after use. That puts workers at risk of losing their job for legal behavior long after the drug’s effects have worn off.

Lewis acknowledged that many firms have already relaxed or dropped stringent marijuana policies, given the tight labor market and legalization of cannabis in Massachusetts in 2016.

“I think most employers recognize where things stand in our society,” Lewis said. “They’re having trouble finding enough workers and they see that there are a lot of adults who choose to use cannabis. They know this is now a legal drug in Massachusetts, and that they should treat it in a similar way to alcohol.”

Still, Lewis said, he hoped the debate around his bill would prompt more local companies to rethink their strict “drug-free workplace” policies.

Christopher Geehern, executive vice president of Associated Industries of Massachusetts, said the business group would not necessarily oppose the bill, depending on its details — but sounded skeptical.

“My guess is there won’t be a consensus among our members,” Geehern said. “It really depends on the industry, whether the company is small or large, whether they’re dealing with heavy machinery or sitting behind laptops.”

Lewis’s bill, he said, must set a clear objective standard around when companies can sack marijuana-impaired workers who endanger other employees and present liability risks. But Geehern acknowledged that could be difficult — employers, like police, are hampered by the lack of a Breathalyzer-like test that can detect marijuana impairment, instead of just recent use.

“This is an incredibly complex, murky issue,” Geehern said. Under a 2017 ruling by the highest court in Massachusetts, companies cannot summarily fire medical marijuana patients who depend on the drug to treat an illness; instead, they must try to accommodate such employees, like other workers with disabilities.

Those protections, however, don’t apply to recreational consumers.

According to attorney Amy Epstein Gluck, a partner at Washington, D.C., firm FisherBroyles who represents employers in marijuana and other issues, nine states have laws prohibiting employers from taking adverse actions against workers because of their legal use of marijuana for medical purposes. Other states, including New York and North Dakota, ban firings over any state-legal conduct outside of work — including smoking cigarettes, drinking alcohol, having consensual sex, and so on.

“I don’t have an issue with this legislation as long as employers can still test for marijuana when there’s a reasonable suspicion that the person is impaired while working,” Gluck said. “Nobody has an issue with the guy who comes home from work and has two scotches — unless he makes a critical error after having two scotches.”

Lewis said he drafted the bill in response to the case of Bernadette Coughlin, who was fired by food service firm Sodexo for flunking a drug test after she fell at work and broke two bones.

Coughlin — and her colleagues — insisted she had never been impaired at work and that the accident had nothing to do with her decision to occasionally inhale small quantities of marijuana vapor before bed. Coughlin is now in arbitration with her former employer, whom she accused of firing her simply to avoid paying a workers’ compensation claim.

“I think most people would agree Bernadette’s situation is very unfair,” said Lewis, who has tentatively dubbed the measure “Bernadette’s Bill.”

Lewis said he was confident it would gain the support of other legislators, perhaps winning passage in a bundle of other tweaks to the state’s cannabis law.

Coughlin, too, is confident, saying the reaction since she went public with her story earlier this year has been overwhelmingly positive. She plans to testify in favor of the legislation at the State House next year.

“I really would hope that whether they’re for or against or skeptical of marijuana legalization, [political leaders] would actually just listen to my story,” she added. “If they really took it in, they’d understand why I’m fighting to keep this from happening to anybody else.

“I’ve never been out of work this long in my life.”

Lewis himself was a strident opponent of cannabis legalization in 2016 — and also opposed ballot measures legalizing medical marijuana in 2012 and decriminalizing the drug in 2008. Recently, he has said that his stance in 2008 was a mistake and that he only opposed a robust commercial pot industry, not personal possession and consumption.

“Things are changing very quickly,” Lewis said. “I think views among the business community are evolving, too, and I think most employers and workers would see this [bill] as fair.”