While the use of recreational marijuana is now legal in some states, there is nothing prohibiting employers from letting go of workers for having it in their system

Why smoking weed can get you fired in Massachusetts – even though it's legal

After a long day at work, Bernadette Coughlin would often come home, take a few hits of marijuana from a vape pen, play Candy Crush on her phone and go to bed.

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She didn’t think it was a big deal; marijuana is legal in Massachusetts and she would never think of going to work high.

But then last May, the then 55-year-old stumbled and fell at the Holy Family hospital in Methuen where she worked as a patient services manager in the facility’s kitchen for Sodexo, a multi-national food services company.

It turned out that she had broken her wrist and her elbow. When she told her boss she had fallen in the workplace, she was sent for a drug test. And when that drug test revealed that she had marijuana in her system, she received a phone call from Sodexo’s human resources department and was fired.

“All of my employees were in shock. I wasn’t allowed to speak to any of them. It was like all of a sudden I was this horrible criminal,” she said. Going into the drug test, “it really didn’t enter my mind that it would have anything to do with marijuana because I knew it was legal at that time. So I really wasn’t that concerned.”

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The use of recreational marijuana is now legal in 10 states as well as the District of Columbia – and more states are considering legalising the drug. In the portions of America where cannabis is legal, it is tempting to think of it like alcohol, another mood-altering substance that is regulated by state governments and once faced a federal prohibition. But there is one big difference: it is unlikely youwill get fired from your job if your boss finds out you enjoy a couple of glasses of wine on your couch at the end of the day.

While state attitudes on marijuana have shifted dramatically as legalisation became increasingly common in recent years, there are still no protections in place for workers who use the drug recreationally in legal states. While you can’t be arrested for smoking weed in states such as Massachusetts, Colorado or Oregon, there is nothing prohibiting employers from carrying out drug tests on employees or prospective hires – and then firing them or not hiring them if they have marijuana in their system.

All of my employees were in shock ... It was like all of a sudden I was this horrible criminal Bernadette Coughlin

Last month, Massachusetts state senator Jason Lewis introduced a bill that would prohibit employers from discriminating against employees who use the drug. If passed, Massachusetts would be the first legal state in the nation to offer such protections.

Provided that an employee is not impaired by marijuana at work and uses it only away from the workplace during off-work hours, the bill says: “An employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalise a person based on a person’s use of marijuana.”

In July 2017, the state’s top court, the Massachusetts supreme judicial court, ruled in favour of an employee who had been fired for using prescribed medical marijuana to help treat low appetite caused by Crohn’s disease.

But extending protections to workers who use marijuana without a prescription can be difficult and such efforts have failed elsewhere in the country.

Nearby Maine, where marijuana is also legal, initially included a provision in its marijuana law whereby employers were barred from discriminating against employees or potential hires over off-work marijuana use. However, that provision was struck when the state’s marijuana law was revised last May.

In Oregon, a 2017 bill that would protect employees who use off-work recreational or medical marijuana from company drug policies was also struck down.

One major sticking point is that companies that have contracts with the federal government or receive grants from it are required to follow the Drug-Free Workplace Act.

“I think that until marijuana is rescheduled or de-scheduled completely, we won’t see a change in the Drug-Free Workplace Act,” said Megan Vaniman, a Portland, Oregon attorney who specialises in employment and cannabis.

In the bill introduced in Massachusetts last month, a carve-out for companies with such relationships with the federal government was included in the text.

Another potential hangup for employers is that there is no surefire way to tell if somebody is high on marijuana. So far, there is no equivalent of a breathalyser for marijuana. As traces of the drug can stay in the body for weeks, tests only show somebody has used marijuana in recent days or weeks and do not indicate if somebody is high. At most, a person can be suspected of having used marijuana because their eyes are bloodshot, they smell like weed and their behaviour is consistent with being high.

Christopher Geehern, the vice-president of the Associated Industries of Massachusetts, an employer organisation that represents 4,000 businesses in the state, says businesses are currently caught in a period of uncertainty surrounding marijuana’s legalisation.

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“The one thing that employers loathe more than anything else is uncertainty – and this is an area where there’s plenty of uncertainty,” he said.

Some employers represented by his group have taken it off the list of drugs they test for, he said.

But “the majority of employers are maintaining their current drug testing policies and I think are waiting for some kind of guidance, either legislatively or technologically, where there’s a way to measure impairment”, he added.

For Coughlin, the loss of her job has been devastating. She said she loved her job and was good at it. Since then, she has applied for more than 20 positions with no luck. She says she hopes the bill will help protect others.

“I guess the way I look at it, if you’re doing something on your own time in the privacy of your own home and it has absolutely nothing to do with your job – and it’s legal in Massachusetts – there should be protection there,” she said.