When pot is legal, can employers fire you for firing up?

Recreational pot smoking is legal in Massachusetts now (though many complexities remain about how and where you can buy it), but that doesn’t mean that penalties aren’t still in place for those who choose to partake. For example, if weed is legal, can your employer still fire you for testing positive for marijuana? The Boston Globe looks at the question and begins with the story of Bernadette Coughlin. She slipped and fell on the job, working in the kitchen at Holy Family Hospital in Methuen, Mass. (She swears she was straight at the time.) Coughlin broke two bones and had to go to the hospital. When she reported the injury, her employer (a contracted food service provider) forced her to take a drug test. She failed and they fired her.

The employee claims she only smoke recreationally at home and was never high at work. So how can her employer let her go?

In a state where recreational marijuana use is now perfectly legal, firing someone for using on their own time and in a way that has no effect on their work is deeply unfair. Set aside antiquated pothead stereotypes for a minute: How many of us would get pretty bent out of shape if the price of an after-work IPA was a trip to the unemployment line?

But while the Supreme Judicial Court ruled last year that workers who hold medical marijuana cards can’t be fired for simply using the drug, neither the courts nor state lawmakers have afforded any such protections for recreational users. Until something changes, employers can fire people for doing something that is both legal and wholly unrelated to their job.

This mirrors many states in which recreational marijuana is now legal. Maine’s original recreational marijuana law included protections for employees in scenarios like Coughlin’s, but those protections were recently undone by the Legislature there.

Sodexo, the company she worked for, has a policy in place which includes, “a prohibition on the use/possession of marijuana at all of its locations in the United States.” They cite the fact that marijuana is still illegal at the federal level as grounds for their policy and it looks like they’re legally in the clear on that front. But even so, the policy says you can’t use marijuana “at its locations.” She wasn’t smoking on the job.

On the surface, it sounds unfair, but we’re talking about a private employer here, not the government. Employers can and do refuse to hire tobacco smokers, even if it’s not official policy. I’ve never heard of a company firing someone who was seen out drinking alcohol at a bar on their own time (assuming they don’t drink on the job) but now I’m wondering if they might even be able to do that.

Employers get a lot of latitude in terms of who they hire and fire, provided it’s not a person in a “protected class.” (Of course, I’m speaking of the private sector here, not the federal government.) Is this an area where the laws need to catch up with the changing landscape of drug legalization? I’m honestly not sure. I think your manager is definitely within their rights to fire you if come back from lunch drunk. But telling if somebody is stoned can be a bit more difficult.

Unfortunately I don’t have any answers on this one that leave me feeling 100% confident. We’ll look into it more in the future, but I have the feeling that this is going to continue to be an issue at least until federal and states laws come into line with each other, assuming that ever happens.

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