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Lawmakers in Massachusetts will delve into unfamiliar territory this coming legislative session when they address whether workers can be fired for recreational weed consumption outside the workplace.

At present, employers can fire workers for testing positive for marijuana use even if they aren’t impaired at work.

State Senator Jason Lewis, a once-ardent opponent of medical and recreational marijuana, plans to introduce new legislation that will prevent employers from firing workers for consuming marijuana at home.

“I’m drafting legislation that I plan to file in January at the start of the new legislative session to protect workers from being fired or otherwise discriminated against for using marijuana on their own personal time,” Lewis posted via social media.

 

“While I will continue to vigorously pursue efforts to prevent the marijuana industry from targeting our youth, I don’t believe that adults who want to responsibly consume legal cannabis should be discriminated against for doing so.”

The catch is that while adults, 21 years-old and over can consume marijuana in Massachusetts, cannabis remains illegal under federal law, which is where employment law and Occupational Safety and Health (OSHA) workplace safety regulations are detailed and often, complicated.

“What’s interesting that state and federal laws are different,” explains Michelle Lee Flores, a marijuana legal expert and partner with the national law firm, Ackerman. “It comes down to employer discretion if there are safety concerns or if the cannabis prevents you from performing your job. To what extent are you impaired and how long does impairment last are ongoing questions.”

If the new measure passes, weed would be treated more like alcohol consumption. Employers would still be permitted to fire workers who show up high on the job, but couldn’t punish workers for private consumption. Exceptions would allow companies that contract with the federal government to continue drug-testing. But legislators and law enforcement currently have no system akin to a Breathalyzer test in order to determine impairment.

The issue came to the forefront when a Methuen woman was fired for smoking while off the clock after she injured her arm walking through the kitchen at Holy Family Hospital and failed a drug test in May 2018. The state supreme court ruled that employees cannot be fired for using medical marijuana in 2017, however, that ruling does not apply to recreational usage.

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