In light of state-legal cannabis, it would be easy to assume that users are safe from the persecution and marginalization of the prohibition era, such as missing out on a job or getting fired thanks to a cannabis drug test – a notorious dilemma for cannabis users. After all, alcohol has a much greater potential for leading to bad decision making, addiction, and affecting your state of mind the following day. Yet, no one can imagine getting fired from a job because your boss heard you were drinking the night before. In fact, Mad Men style office drinking has made a modest comeback in the digital era. So, it might come as a bit of a shock that neither recreational users nor medical patients are widely protected from discrimination by employers.
Legal Protections for Employees Using Cannabis
For medical patients, some states are an exception - but California is not one of them. In fact, out of 29 states with medical cannabis programs, only 9 offer any protection at all for medical patients to use what their doctor has recommended for them. In 2008, a California court specifically upheld the rights of employers to fire employees who have tested positive for cannabis use, even with a medical recommendation for a serious illness.
In contrast, the Massachusetts Medical Marijuana Act protects those with “debilitating medical condition” from penalties. In addition to Massachusetts, Arizona, Connecticut, Delaware, Illinois, Maine, Nevada, New York, and Rhode Island all offer some degree of protection for employees that have been approved for medical cannabis. Notably, most of this progress has occurred in the last several years, before which courts had always ruled in favor of employers.
As far as legal protections, the situation for recreation users is, unsurprisingly, even worse. In fact, unlike the failed 2010 legalization measure which stated employees could only be fired for being impaired on the job, Prop 64 was crafted specifically to preserve the power of employers to fire employees who use cannabis.
It explicitly supports the power of “public and private employers to enact and enforce workplace policies pertaining to marijuana.”
Along with high taxes, this measure seems to have been part of the political cost of gaining support from non-smokers, and minimizing opposition from powerful interests that might be on the fence.
Will States Reform Cannabis Laws To Protect Employees?
So, that’s the bad news. Is there good news?
It’s increasingly possible that there will be some good news soon. Although the law leaves these decisions up to employers, the cultural attitude toward cannabis is certainly becoming more relaxed. At the same time, the job market is tighter than it’s been in decades, with unemployment reaching nearly record lows in many places. Reports from experts increasingly suggest that these two developments could be working together to force real change.
Speaking to AP, head of drug testing at the law firm Ogletree Deakins, Michael Clarkson said:
“It has come out of nowhere. I have heard from lots of clients things like, ‘I can’t staff the third shift and test for marijuana.’”
With more states moving toward reforming their cannabis laws, including a measure on the ballot for recreational cannabis in Michigan in November, and Missouri considering a medical provision, it seems unlikely that these pressures will let up anytime soon.
Even Trump’s labor secretary, Alexander Acosta, said last month during a congressional hearing that employers should take a “step back” on drug testing, adding:
“We have all these Americans that are looking to work. Are we aligning our … drug testing policies with what’s right for the workforce?”
One survey by the Society for Human Resource Management found that about 57 percent of companies test at least some of their workers for drug use. The practice became widespread in the late 80s, in response to a federal law requiring government contractors to establish a drug free workplace.
While the evidence for the current shift is largely anecdotal so far, it suggests the first widespread change in drug-testing policy since this development in the 80s. Not only is there little data on the number of companies that have relaxed drug-testing policies, but many companies that may want to widen their labor pool are unlikely to want to make a highly visible, public policy shift on the matter. They may be going about these changes quietly.
According to New Hampshire labor lawyer James Reidy:
“This is going to become the new don’t ask, don’t tell.”
Reidy also added:
“It’s an artificial barrier to employment. ... It’s no different than having a beer Sunday night.”
One notable exception to the companies testing for cannabis is the car dealer AutoNation. The dealer stopped testing for cannabis use last year, and have gone public about it. Mark Cannon, a spokesman for the company explained that the decision was made in response to the diminishing social stigma of cannabis, but also to avoid missing out on potential employees. Cannon also notes that AutoNation heard from other companies, acknowledging “‘We’re doing the same thing; we just didn’t want to share it publicly.’”
In Denver, a survey by the Employer’s Council showed the number employers that drug tested fell from 77 percent to 62 percent between 2014 and 2016. Of course, in addition to being an early adopter of legalization, Colorado also has a minuscule 3 percent unemployment rate.
All else being equal, most companies would probably play it safe and maintain the status quo rather than take what might be seen as a public image risk to relax its testing policies. However, the reduction of the anti-cannabis stigma is coupled with almost record-low unemployment rates. Together, will these factors add up to be a death blow for cannabis drug testing in the workplace?
According to Alison Sullivan, a career trends expert at Glassdoor:
“Companies are feeling the near-record unemployment across the country today, making it increasingly difficult to hire. When under pressure to find workers, some employers can re-examine existing company policies, practices, and benefits as a way to remove hiring barriers and better fill jobs.”
In other words, when faced with a challenge to hire good workers, employers are starting to wonder if cannabis users are a group they want to miss out on. Perhaps it will become harder to justify a lack of protections as the stigma surrounding cannabis continues to dissipate.
Conversely, however, Reidy notes that many employers are now more likely to drug test after accidents, and in situations where they have reason to suspect a worker was under the influence at work, especially since impairment can be a factor in whether employees are owed worker’s compensation.
A Brighter Future for Cannabis Using Employees
Even on a legal level, Maine broke new ground when it legalized in 2016, preventing companies from firing employees for cannabis use outside the workplace.
Along with the court victories in places like Massachusetts, the wide variety of legal situations across states means companies operating across different states would need to be very cautious to avoid lawsuits for firing employees for using cannabis in their free time. Instead of enforcing a complex range of regulations in different states, companies may be choosing to err on the side of caution and make sure their nationwide policies comply with the policies of states like Maine. It’s a similar principal to the European Union’s recently passed privacy laws, which have prompted a change in the global policies of companies like Facebook that will now affect users across the world. In an interconnected world, policies offering more protection tend to become the gold standard as companies play it safe to avoid lawsuits or heavy fines.
How long will it take for the change to become truly widespread? Probably at least a few years, and federal legalization wouldn’t hurt, but with changing attitudes, companies may start to find the positive publicity outweighs any negative attention from these changes - especially among the young labor pool they will increasingly be looking to hire from. Perhaps these changes in the private sector will even help fuel further changes in public policy, instead of the other way around.