Ending Job Discrimination Against Marijuana Smokers | Marijuana

Ending Job Discrimination Against Marijuana Smokers

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One of the most troubling aspects of current marijuana policy in this country, even in those states that have legalized marijuana, is the continuing job discrimination faced by those who smoke marijuana.

In 49 states (Arizona is the sole exception), a private employer is legally free to fire anyone who tests positive for THC in their system, without the slightest suggestion the individual came to work in an impaired condition. It is a relic left over from the “reefer madness” days when marijuana smokers were considered bad people, and employers were anxious to identify smokers and get rid of them.

Arizona does not permit employers to discriminate against legal medical marijuana users (they do not yet have legal recreational use) “unless a failure to do so would cause an employer to lose a monetary or licensing benefit under federal law or regulations.” Of course, employees in Arizona are not protected if they come to work in an impaired condition, or possess or use marijuana in the workplace. Until we manage to change federal law, that is a good model for new states to consider, as they draft either medical use or full legalization proposals.

For those who may not know, it is important to understand that THC remains in the system for days, or for heavy, long-term users even weeks, after the individual has smoked marijuana. But the individual is only impaired for about 90-minutes after smoking. It is the impairment that should be of concern to the employer, not the off-work usage.

The Absurdity of the ‘Drug-Free Workplace’

For too many years, private employers have been encouraged by the federal government to drug test their employees, as a way to enforce the anti-marijuana laws. These employers who opted for what is called a “drug-free workplace,” seemed unaware of the hypocrisy of allowing workers to get drunk in the evening and come to work the following morning, while treating off-job marijuana use as a disqualifying factor, even if it occurred days or weeks earlier.

They justified that distinction on the basis that marijuana was illegal, while alcohol was not. But with the changing marijuana policies and attitudes in this country, including four states and the District of Columbia that have legalized adult use, and a total of 37 states that have adopted some form of legal medical use, that justification no longer applies.

Testing for THC determines only whether the individual has smoked marijuana over the last few days; it is not a test for whether one is impaired when the test is taken. Yet today, even in states where marijuana is legal, the majority of employers continue to fire good employees who test positive for THC, without any indication that the individual has ever come to work in an impaired condition. It is an ignorant and self-defeating policy that no longer has any place in the American workplace.

Unless the off-the-job marijuana use is interfering with that employee’s ability to perform their job in a safe and efficient manner, it should be irrelevant.

We need to better educate employers about marijuana and marijuana smoking, and convince them that drug testing, at least for the purpose of identifying marijuana smokers, is a costly waste of money for the employer and will inevitably result in the unnecessary loss of good, productive employees. Whether one enjoys a glass of wine or a marijuana joint when they relax in the evening has absolutely nothing to do with their fitness as an employee.

Another Reagan Legacy

Workplace drug testing was largely popularized by President Ronald Reagan, who in 1986 issued an executive order requiring federal agencies to establish regulations to achieve a “drug-free workplace,” making it clear that federal employees are forbidden to use illegal drugs “whether on duty or off duty,” and requiring drug testing for all applicants for federal employment, and for federal employees deemed to hold sensitive position.

At that time only about 20 percent of private employers drug tested their employees. Today that number exceeds 80 percent. Private corporations have been enlisted in the war on marijuana smokers in a big way, and it will take some time and effort to turn them around. For too long, employers were made to feel that it would almost be unpatriotic if they refused to drug test their employees, that somehow they would share the blame for the perceived drug abuse problems in America. The unmistakable message was “If you love America, help us enforce the marijuana laws and drug test your employees.” And most fell in line.

We all agree that those who operate dangerous machinery, or have the safety and welfare of large numbers of people in their hands, such as bus drivers and airline pilots, can and should be subject to random drug testing. But the vast majority of employers have no such excuse for violating their employees’ privacy.

Influence of the Drug Testing Industry

Another factor driving workplace drug testing is the influence of the drug-testing industry, which includes some of the former drug czars who have cashed-in on the “drug-free workplace” mantra. Most private employers have no drug abuse expertise, and they are regularly warned by those in the drug-testing industry that if they do not hire these drug-testing companies to test the urine of their employees, they will be losing valuable production by workers who are stoned on the job.

There is not the slightest evidence that stoned employees on the job is a serious problem for employers, or that the money employers spend on these needless drug tests is money well spent. In fact, the National Academy of Sciences in 1994, following a three-year study, published a report entitled Under the Influence: Drugs and the American Workforce, which challenged the cost-effectiveness of drug testing employees.

And the inevitable result of workplace drug testing is the loss of many good, loyal, productive employees who are fired for testing positive for THC, but who have never come to work in an impaired condition. That’s both unfair to the employees and damaging to the employer. As marijuana legalization continues forward across the country, those companies that continue to drug test for marijuana will end up in an uncompetitive position, as other more innovative companies accept the legalization of marijuana and protect their employees from job discrimination.

Job Protection Provisions Moving Forward

As we move forward with legalization proposals in more and more states, it is important that those proposing the changes do polling to test the impact of including language similar to that adopted by Arizona voters to protect legal smokers from being fired. If the polling demonstrates that legalization can win with the anti-job discrimination provisions included, then obviously they should be. Next to stopping the arrest of smokers, ending the unfair job discrimination marijuana smokers face must be our highest priority.

But if the polling suggests the inclusion of those job-protection provisions will cause the defeat of the initiative, then the language should be deleted and we should deal with this issue in the second phase of reform. We will continue to work to end the unfair job discrimination faced by marijuana smokers, as well as other needed improvements involving child custody and DUID issues, but it is easier politically for us to fine-tune these new laws once marijuana has been legalized and de-stigmatized, and marijuana smokers are no longer seen as criminals.

And we should focus our efforts on better educating private employers that drug testing their employees for marijuana use is both unnecessary and a waste of resources. In the end, it is the cultural acceptance of responsible marijuana smokers as good citizens that will finally end this destructive policy.

About Author

Keith Stroup is a Washington, DC public-interest attorney who founded NORML in 1970. Stroup first smoked marijuana when he was a first-year law student in 1965 and has been a regular smoker and a cannabis activist ever since. In 1992 Stroup was the recipient of the Richard J. Dennis Drugpeace Award for Outstanding Achievement in the Field of Drug Policy Reform presented by the Drug Policy Foundation; in 2010 he received the Al Horn Award from the NORML Legal Committee for a lifetime of work advancing the cause of justice; and in 2012, Stroup received the High Times Lifetime Achievement Award. Keith currently serves as NORML's Legal Counsel and on NORML's Board of Directors. He resides in Falls Church, Virginia with his wife.

14 Comments

  1. Given that the reason many employers use to fire employees who test positive is that “using cannabis is illegal under Federal Law”, would removal of cannabis from Schedule 1 to some other schedule be the best first-step in ensuring protection at the state level?

    • MysticMagicks on

      I believe that is essentially what’s going on here. It doesn’t matter what the state says if federal law can overrule the state. Luckily, for the average person, they only need to worry about state law. But when you get into larger business, issues can arise in federal law.

    • DAVID SCHORTNER on

      If you have a job deemed “safety sensitive” by uncle sam, such as truck driving, you will be drug tested.

  2. Rod is on the Gas on

    I shudder to think, what the insurance industries’ back-room conversations concerning this unfair practice, are directed towards. Profit is job #1 if you’re in the insurance scheme. The ability to determine who is employable in America is big business, it carries a membership of directors who seem to enjoy the power and undisputed control of social architecture. We currently shackle wage earners (not administrators) with the requirement of joining the prohibitionists’ club.

    Absurd situation.

  3. I encourage everyone who supports Cannabis to do as I intend to do, BOYCOTT any business that fires someone,or refuses to hire someone based on a piss test.

    • DAVID SCHORTNER on

      Please let me know how to boycott everything that is transported, you moron! “If you bought it a truck brought it” and the driver has to take a piss test on demand at anytime.

  4. Kathleen Chippi on

    yet national NORML brought the unscientific 5 nano limit to Colorado for DUI that puts ALL patients and any monthly cannabis user at risk of not only a DUI but rehab and drug testing and loss of drivers license to be able to go to drive to a job….stuff it Keith, you and NORML helped create these problems that put people in harms way and you and your NORML criminal defense attorneys benefit off of the catch 22’s you helped create….sure does line pockets of your friends…

  5. Just curious to know what speedy, simple, relatively inexpensive objective test for “impairment” now exists?

    Lacking such a test, any thought to indemnifying employers against suits arising from industrial accidents (thinking here of places like chemical plants, gas plants and refineries, but there are many other places where the potential harm is quite great)

    • DAVID SCHORTNER on

      The performance machines have existed for years. A person is tested for physical agility and also must pass a “cognitive” mental test. The results are more accurate than airport security machines. The big reason this has not caught on is simple. The medical testers have too much to lose, so they are willing to pay lobbyists who “legally” bribe lawmakers.

      • If you are referring to the three-part test (includes a so-called “eyeball response” assessment) which has been out there for around 30 years, I’m afraid it doesn’t meet the criteria of “speedy, simple, relatively inexpensive”. That’s why some security firms use just the “eyeball response” portion, which is of dubious validity IMHO.

        No, I’m thinking of something like a saliva swab or urine samle or even a blood test.

  6. DAVID SCHORTNER on

    After being a truck driver since 1984, I’ve had enough! No more pissing on demand! I’ll just pretend to be a poor undocumented laborer and take all the hand outs offered by my “sanctuary state”, Mexifornia. illegals don’t have to get drug tested.

    • Amen to that. To be poor unemployed is better than ruining you health working for ridiculous companies making big profits off of you. Happy sunshine and fresh air to you. Not to mention the well rested soul you become.

  7. Hi…I have had to take xxtra clean 2 times and test came back diluted. Today is my first day abstaining. Have my card….politics. I just purchased Omni Cleansing Drink along with Creatine, B6 and Niacin. The manager stated the Omni Cleanse will rid alcohol and Marijuana with 24 hours and will not come back as long as abstaining. Someone please help me. This minimal issue turned into a tornado. Please help!

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