With cannabis now legal in some form or another in 26 states and the District of Columbia, the question has to be asked, “Can my employer fire me for failing a drug test due to marijuana use?” Unfortunately, the answer is still largely, “Yes.” This brings up a host of questions, especially for medical marijuana users, regarding privacy and even discrimination. Much to the chagrin of most consumers, these are issues that are still being sorted out on the legal front, and some of those which have been reviewed on a legal level have not resulted in outcomes that favor consumers, even if they’ve been prescribed cannabis for a medical issue.
One of the first questions to present itself in states where recreational use has been legalized is privacy. After all, it’s not the concern of your employer whether you have a few cocktails after working hours right? So how does marijuana differ?
This issue really boils down to having the available technology to determine when the marijuana was consumed
Because marijuana is detectable in the system far longer than alcohol using the technology currently available, when an employer drug tests, there is no way for them to determine whether or not the consumption in question has left the user impaired on the job.
Obviously, this muddies the waters of privacy since the time you spend on the job is in fact subject to scrutiny when it comes to any substance that could impair your function. Without any way of knowing when the cannabis was consumed, employers are left in a black hole of potential liability should something go awry and an employee tests positive after the fact. Cue the lawsuits! So you see, in many cases, it’s not a matter of your employer wanting to know about your personal habits, but rather a matter of protecting themselves from costly litigation and losses.
What If I Have a Prescription?
If you were thinking that your medical prescription for cannabis would exempt you from the scrutiny of drug testing, think again. In California, where medical marijuana has been legal for over 20 years, the California Supreme Court ruled in 2008 that because marijuana is illegal on a federal level, employers are not required to accommodate employees’ medical marijuana use. Unfortunately, employees in Oregon, Colorado, and Washington have not fared any better in their legal pursuits either. The underlying factor here seems to be that the language of state laws legalizing marijuana only addresses criminal charges by the state and do not insulate users on any other level.
This is not to say that every state is without protection for medical marijuana patients, but those protections are limited to states where specific legislation has been enacted to address the issue outside of the narrow issue of legalization.
For example, Arizona has taken steps to ban discrimination against employees who hold a medical marijuana card unless the employee is impaired during working hours
Here is where we circle back around to determining when exactly an employee is impaired. Unlike alcohol, there is not currently a test to determine the “legal limit” for cannabis use, leaving this area very subjective and open to abuse.
Federally Illegal, Federal Jobs
Of course, no matter the reason for use, recreational or medicinal, any employer which is subject to federal funding is subject to federal law, which we all know still fails to recognize marijuana as anything other than an illicit substance. Thus, employers who benefit from federal funding are not only going to drug test, but also enforce a zero tolerance policy on marijuana use regardless of whether you have a prescription or not. Until Congress recognizes the medical importance of cannabis and enacts legislation to legalize its use, this is an area of employment law that will not see any change despite state level efforts to protect cannabis users.
Does Your Company Have a Drug Policy?
So, where does this leave you if you are a cannabis consumer in a legalized state? First and foremost, examine your company’s policy regarding drug use and be familiar with their testing policies. This is especially true if you are pursuing employment with a new company.
If you aren’t clear on the company’s policy, ask an HR representative for clarity
Because this is an issue largely dependent on your company’s individual policy and tolerance level, it’s up to you to find a balance that you can live with in your professional life.
You may find it helpful to read up on how cannabis works within your body and have an understanding that there is no fixed time that marijuana stays in your system. Additionally, don’t fall for sensationalized products online or in head shops that claim to help you pass a drug test. Many of these products pose health risks and don’t work.
Protect Your Privacy, Get Involved
Not happy with the lack of protections in place for your privacy and your medical needs? Then it’s time to roll up your sleeves and get to work! Start lobbying your state and federal legislators. On a state level, join the fight to extend protections to encompass medical marijuana users and eliminate discrimination based on disabilities. Since many of the legal rulings made to date refer back to the federal prohibition of marijuana, the most effective and powerful change we can make is on a federal level. Make it a point to throw your voice behind legislation aimed at not only rescheduling cannabis but pursuing full legal status.
Currently, the Ending Federal Marijuana Prohibition Act of 2017, is the biggest federal proposal in play
It basically kicks the federal government out of the conversation and returns the power to legislate marijuana to the states themselves, a tactic which seems to be making far greater progress than we’ve seen since marijuana became a federal issue in the 20th century. Removing the federal hurdles to marijuana will also increase access to research and who knows, that may result in better testing methods to determine impairment and clarify the muddied line employers are currently subject to.
Eliminating the potential for liability is probably one of the biggest hurdles employers face and research is the only way to address this issue outside of prohibition. The Ending Federal Marijuana Prohibition Act of 2017 has been introduced to the House of Representatives and has currently been referred to the House Subcommittee on Crime, Terrorism, Homeland, Security, and Investigations. You can follow it’s progress here.