Should Employers Be Allowed to Drug-Test for Cannabis in Legalized States?

Should Employers Be Allowed to Drug-Test for Cannabis in Legalized States?

On Nov. 6, 2018, Michigan became the 10th state in the U.S. to give the green light to legal recreational weed. Altogether, 31 states have legalized marijuana in some fashion, with more than 20 states signaling approval for medical purposes.

For the states that have taken the plunge, the result has been a brand-new and booming industry practically overnight, plus much-needed windfalls of tax revenue. But it also brings uncertainty and, in some cases, extreme frustration. Even as the work of legalization continues at the state level, each state that brings about this change finds itself at odds with the United States’ draconian, federal-level ban on marijuana and even marijuana research.

The question today is this: Should employers in states that have legalized medical or recreational marijuana be allowed to drug-test their employees for cannabis any longer? It’s not necessarily a complicated debate, but it’s a contentious one. Let’s look at both sides.

Why Is This a Question?

In America, about half of all job candidates get subjected to drug tests. That’s before they even receive an offer letter, mind you. They undergo this screening while they’re still candidates. And it’s in the name of discovering whether they are a “fit” job applicant or not.

But as we’ve established, the conventional wisdom which states cannabis is a “drug” — and, indeed, that it’s a drug as dangerous as opiates or heroin — is on thin ice indeed. Its relationship with the human brain, and with many other animal brains, has more in common with medicine than it does with narcotics.

Currently, even if your state has legalized marijuana for medical or recreational purposes, your employer may conduct a drug test anytime. And they can fire you if they find THC in your bloodstream.

I’m not arguing this is the current precedent. But I definitely would say that in places where federal and state laws conflict, the less severe law should take precedence. Always. Whether you’re on the political left or right, you’ve probably at one point or another endorsed the idea that states are “laboratories of democracy.” But the experiments cannot continue if fearful conservatives and relentless pharma lobbyists in Washington keep putting the squeeze on the state governments that have successfully outmaneuvered them.

What’s the Argument in Favor of Workplace Testing for Cannabis?

If you live in a state that has not made cannabis legal for medicinal or recreational purposes, your state government and the U.S. federal government agree: under no circumstances may you show up to work with THC in your bloodstream.

But the impossible situation left-leaning state governments have found themselves in has been tying up the nation’s courts for years. As recently as December 2016, American courts were upholding the right of employers — in this case, Dish Network — to discriminate against employees who choose to use cannabis for pain management or otherwise to treat themselves for medical problems.

In the Dish Network case, the Colorado Supreme Court upheld the firing of a man who’d been using marijuana at home to manage his recurring seizures. Doing so did not affect his work ethic. But he got fired anyway, and the state’s Supreme Court sided with Dish Network. Their only reason for doing so? Because cannabis use is illegal at the federal level.

You’re not missing anything — that’s the only argument.

Maine legalized recreational marijuana in 2016. But it wasn’t until February 2018 that the state government recognized allowing in-state employers to test their staff for offsite cannabis use constituted discrimination. Workplace testing for marijuana is now against the law in Maine.

What’s the Latest? And What’s Next?

As mentioned, 31 states in the U.S. have instituted either a broad or limited legalization of marijuana. Of these, just nine states have thought to incorporate protections for employed people who might face discrimination or unlawful firing due to at-home self-medication with pot.

It’s a huge oversight that’s leaving a lot of American medical patients in the most painful kind of limbo. As we’ve explored this issue at greater and greater length in the courts, we’ve seen precedent move further and further away from the interests of patients and employees. The state of New Jersey has been watching the following saga unfold for the last few years:

  • A professional forklift operator sustained an injury in 2007 for which he began self-administering cannabis for pain.
  • He got hired in 2011, at which point he informed his employer about his self-medication with cannabis.
  • The worker was involved in a workplace forklift accident in 2016, after five years of steady employment with the same company.
  • Per company policy, the company attempted to administer a drug test.
  • The forklift operator refused and got fired.

The case details reveal the man hadn’t been anything less than a model employee and hadn’t done anything to cast doubt on his account of the accident. But the federal judge involved in the case deferred to the federal-level ban on marijuana, indicating once again that the so-called “precedent” that has put states and cannabis users in this impossible position is tissue-paper-thin and based on nothing but inertia. “Things have always been this way,” the judge seemed to be saying. “So why shouldn’t they always be?”

In cases where there is both an ethical and a scientific argument for expanding certain personal freedoms — mainly if the law already protects those freedoms in many parts of the country — why would we ever defer to a movement which would curtail the expansion of those freedoms? Mustn’t a civilized country always choose the path that results in greatest liberty, if such liberties improve our quality of life without harming others?

On that note, not every occupation carries the same risk or comes with the same set of responsibilities. There may always be room for special cases, including employees who operate heavy machinery. Interestingly, however, research seems to indicate a correlation between a state making medical weed legal and a lower likelihood of workplace injuries in that state.

It’s clear that this lack of consistency between the federal and state governments cannot hold forever. The federal government, sooner or later, will have to relent to the pro-cannabis movement now taking place in America. A murky legal footing isn’t good for businesses, and it isn’t good for folks who only want to hold down a decent job without letting their health get the better of them.

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Kate Harveston is originally from Williamsport, PA and holds a bachelor's degree in English. She enjoys writing about health and social justice issues. When she isn't writing, she can usually be found curled up reading dystopian fiction or hiking and searching for inspiration. If you like her writing, follow her blog, So Well, So Woman.

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22 thoughts on “Should Employers Be Allowed to Drug-Test for Cannabis in Legalized States?

  1. Even in a jurisdiction with legalized or decriminalized recreational, we are talking about an intoxicant. I’m all for full on legalization and I’m also all for maintaining restrictions on things that intoxicated people should be doing — like driving, operating that forklift, and so on. I think most of us, even those who regularly use, would agree with this as a general rule.

    Let’s say I get into an accident at work, and you want to know if I’m drunk. You make me huff into a breathalyzer and my breath changes those crystals’ colors. Well, you’ve got a good reason to believe that I’m drunk, right now. But if I take the test and there’s no sign of alcohol-induced impairment, you don’t care very much that I polished off a six-pack in one sitting the previous weekend.

    But if instead you make me take a drug test, you might find that my pee comes back positive for cannabinoids. You’re going to assume that I was stoned at the time of the accident. But the chemical markers for cannabinoids are more persistent than the markers for alcohol, so it’s entirely plausible that I’m telling you the truth that it was from a low-dosage edible I enjoyed, legally and safely at home, a week or more ago. But you act like I was stoned at that moment, and now I’m fired.

    As far as I know, there’s no good way to objectively determine whether I’m high or not right now. And until there is such a thing, we’re going to continue to have this problem. Cognate issue for police in the field trying to detect and gather evidence for DUI cases: driving while stoned is just as bad as driving while drunk, and for very similar reasons, but it’s harder to detect either the fact or the degree of marijuana intoxication because the technology just isn’t there yet.

    I suspect until the tech does get there, until there is a better way to figure out if I’m high right now, we’re a) not going to be able to navigate the problem of disparity of treatment, and b) not going to see significant movement in the direction of decriminalization at the Federal level.

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    • Urine tests are the most well-known, because they detect cannabis use over the longest time horizon, which used to be considered desirable. But they’re utterly useless for determining current intoxication levels.

      Saliva and drug tests are a lot better for current intoxication, but still far from the kind of reliability that a breathalyzer has for alcohol.

      I don’t really know why that should be an obstacle to legal decriminalization / legalization. The need to know whether someone is impaired right now isn’t changed by whether the suspected intoxicant is legal or not. It doesn’t matter to a person’s level of impairment by opioids, for example, whether they have a prescription or not, or if it’s an OTC opioid for which no prescription is needed. Impaired is impaired, unimpaired is unimpaired.

      But such rational consideration is too seldom the determining factor in the drafting of laws…

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      • But such rational consideration is too seldom the determining factor in the drafting of laws…

        And therein lies the root of the problem. We’ve had three generations of “Drugs are bad, mmmkay?” and “Reefer Madness!” by now, animating our public policy and moral teachings for so long it’s hard to do more than marvel at the quaint historical practice of doing things like selling heroin through the mail (which, you’ll recall, was done in the late 1800’s in the United States).

        So even if we do develop a way to do an on-the-spot blood test that offers a metric of contemporaneous marijuana intoxication, we’ll still have to overcome a heavy burden of moral judgment baked in to our culture.

        I’m just gonna leave that last bit of wordplay right there.

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        • FWIW I think what they’re doing here is an on-the-spot saliva test, which if over some threshold will result in a blood test back at the station. Similar to how the breathalyzer in the squad car is a probable cause screen to bring you back to the station to use the bigger and more accurate breathalyzer, on whose basis tickets may be issued.

          But the thresholds they’ve set for blood serum THC, where the penalties include imprisonment on second offence, as I understand it, are so low that an equivalently-impairing quantity of alcohol wouldn’t even get you a 24 hour license suspension.

          Also they take no account of CBD, which considerably reduces the impairing effect of THC. I have no idea how you’d put that in law though, other than to ditch quantitative blood thresholds as the determining factor altogether.

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    • For now I suspect it’s going to have to be some sort of behavioral test like the roadside drunk test where you have to close your eyes and touch your nose. Idk, maybe dangle an Oreo and a Mountain Dew and see if you can resist.

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  2. I think in cases where safety (either of the employee or of people in their charge) is at stake, yes: like the forklift operator. I also admit I worry about people driving while stoned, though people driving tired or driving while arguing with the person sitting in the car with them are probably equally distracted.

    There are also some gray areas: I once had to throw a student who was still drunk after a bachelor party out of a morning lab. It was a dissection lab and he was just happy enough that I feared for sliced fingers, and didn’t relish having to fill out the accident report (also questionable what my liability would have been, given I knew he was impaired: I mean, he was LITERALLY saying “Wow, man, I am still wasted this morning!” so it was pretty obvious).

    But what happens if I don’t recognize someone is stoned, they show up to a lab where we’re using low-level hazardous chemicals, and they wind up ingesting them or something? Or they cut themselves or burn themselves? Is there a chance they could later claim “but she should have known and protected me from myself?” (I did once ask a student quietly to keep an eye on his lab partner; the guy seemed excessively happy and his eyes were kind of glassy and I wondered if he’d consumed something before class. Luckily that lab went off without incident but we weren’t doing anything terribly dangerous or tricky)

    About other jobs, I don’t know. I’m not sure I’d love dealing with customer service people who were stoned but I’m not sure it would be much worse than some of what I’ve seen recently. I admit I’d object to being made to pee in a cup on a regular basis at work (I do not use, and doubt I ever would). Then again, I have the common sense that if I were on some medication that might impair me, I’d cancel lab that day, just like I would if I had a migraine headache bad enough to adversely affect my ability to conduct a lab safely…

    I’m guessing there will be people who use lightly but use common sense and we don’t need to worry about them; it’s the people who go off the deep end we need to worry about, but they may already signal that to everyone without drug testing them.

    But as Burt said: the testing is still crude enough that we can’t separate “has used cannabis in the past several weeks” from “is currently high in the moment” and we probably need THAT kind of test.

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    • Honestly I find that I’m better in some parenting situations when I’ve got a light cannabis buzz (about a glass of wine’s level of effect – I use tincture so it’s really easy to take 1/2 mL of tincture every time and get a glass of wine’s worth of effect every time). I’m just a little more patient, a little better at gently maintaining the momentum toward bedtime in a gentle way that doesn’t turn into me nagging and my daughter predictably getting upset at the nagging and arguments interrupting the process.

      A glass of wine does not help me in the same way. I am similarly buzzed, but in a way that hinders rather than helps my ability to maintain compassion and lightness.

      In a customer service role, I can similarly see how it might help more than it hindered. Being straight-up baked at work – not so much.

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      • I never understood why Blockbuster (remember them?) drug-tested.

        That job struck me as one that would benefit from a light haze.

        I could see wanting to weed out the people who couldn’t manage to either wait a week or buy one of those cleansing kits from the head shop but Blockbuster did a *HAIR TEST*.

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        • I would pretty much hate it if the employees I supervise (I supervise customer service)
          – or for that matter my other coworkers – were stoned, because, based on past experience of same, they would fuck everything up. Not the customer service part (which they’re already good at!), but the cash, the shelving, etc. Honestly the couple-few times someone has been stoned at work, that’s how we knew and dealt with it (dude, by talking to them! not getting them fired!!) – because their attention to detail went out the f’ing window. The one time someone THOUGHT someone else was stoned and coming to work, and they weren’t, it turned out they were chronically sleep deprived. The effects are similar.

          Not a problem for bedtime, wouldn’t be a problem for soothing people, but most customer service jobs also require a high level of paying attention. Stoned people, in my not inconsiderable experience (outside of work, I mean), are *very sure* they are paying attention, but they’re paying very patchy attention to what interests them.
          Math and alphabets are generally not getting handled…

          I can believe some of them would be just fine on a glass of wine’s worth of buzz, so the “it’s not a problem unless it’s a problem” makes sense to me – I mean, that’s what I’ve been doing all these years, nu? – but it definitely *is* sometimes a problem.

          Also and not related to the rest of my comment, the other day my cabbie stank of weed (tbf because of how I was raised I can smell the stuff 50 miles away), and seemed like he was probably mildly buzzed. That was weird. Like, he turned out to be driving just fine, I was going six blocks, I had no problems, but was I putting people’s lives in danger by not reporting him or at least confronting him and judging his response? I reckon I wasn’t (which is why I didn’t do anything), but unlike alcohol, the stats on what smoking what amount of what strength of weed (or your approximate impairment level) does to your driving skills are poorly poorly known. Apparently we’re moving into a world where I should have a rough idea of how this works, and I totally don’t. Yet.

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  3. Way back when, in 2014, I called a whole bunch of corporations and asked them about their marijuana policy following Amendment 64.

    The Big Military Contractor told me that weed was still illegal federally, they had federal contracts, they would still test, and testing positive would be grounds for termination. A little dinky insurance-adjacent place told me that they didn’t test and if it wasn’t a problem, it wasn’t a problem.

    Here’s the big problem that I see: let’s say that we agree that people who run the metal press or the drill thingamabob or the lathe need to stay clean. It’s not just their own lives/limbs that they’re risking, they’re risking the life and limb of their co-workers. But the people in accounting? The people in HR? They’re not.

    So that means that the blue collar workers can’t smoke it medicinally or recreationally and the white collar ones can. And there are class issues involved at that point which have seriously bad optics.

    And then we have to choose between the optics that follow after someone loses life/limb *OR* the optics that follow blue collar testing but not white collar testing *OR* the optics that follow corporations that say “Nobody gets to smoke weed”.

    That last one allows for tacit use, though. If it’s not a problem, it’s not a problem.

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    • Similarly, now that weed is federally legal in Canada, some cities (including Edmonton where I live) are saying that you can smoke cannabis in the same places where you can smoke tobacco. Others (including Calgary, the other big city in Alberta) are saying that you cannot smoke cannabis in public.

      And of course there’s a definite class / wealth divide between who lives lives in apartment buildings with no smoking allowed indoors and no private courtyard in which to step out for a smoke, and who lives in a detached house with its own private yard space in which to smoke.

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  4. I’m torn on the main question of this OP.

    It’s also offensive to me that an employer would penalize a worker for extramural activities that don’t affect job performance. I also want cannabis to be legalized.

    At the same time, I tend to buy the argument that employers should have wide (but not unlimited) latitude in determining whom they hire. (I’m less sanguine about employers’ prerogatives to fire employees.) Also, testing for drugs probably performs some sort of sorting function in that prospective employees likely to score positive on a drug test might very well be more likely to be poorer employees.

    I do think, however, the OP misses the mark on a few important points.

    First, I don’t know the Colorado case concerning Dish Network, but I suspect it wasn’t really resolved on the fact that marijuana is federally illegal, but on the employers’ prerogative to fire at will. (I could be wrong, of course.)

    Second–and this touches on the “sorting” point I made above but on other things as well–I suspect pre-employment tests* and “tests after accidents” are part of a business’s package of liability insurance. If businesses have those stipulations in their policies, then maybe the pay lower insurance premiums. (Or maybe not. I said “I suspect” because I don’t know exactly how those things work.)

    *I’m not sure Kate’s point that “[i]n America, about half of all job candidates get subjected to drug tests. That’s before they even receive an offer letter, mind you. They undergo this screening while they’re still candidates.” [bold added by me] is correct, or I’m not sure it’s universally correct. Every time I’ve had to take a drug test to get hired, I had been offered the job already, “contingent” on passing the drug test.

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  5. If you’ve ever had to work a job with a stoned/drunk person they can turn even a fairly safe job into a dangerous one pretty quick. Not only out of sheer personal safety (like screwing up dealing with fryers full of hot oil and knives and meat slicers) but also like Maribou alludes to, the safety of your job. If the till comes up short, it could be your job or even legal action if it wasn’t cut and dry what happened and if a crime had occurred (not saying anyone committed a crime, but when money comes up missing that is always the bosses’ first assumption).

    My husband, who has always worked dangerous jobs with forklifts and cranes has had the people he was supervising or working with showing up to work high, drunk, beaten up so badly they could barely stand up (this was in the pinnacle of the Fight Club era) or insanely tired. Sometimes he would just send them home but if it was habitual then obviously the company would have to take action.

    There’s always going to be some poor guy who gets wrongfully fired but on the whole it’s ~probably~ not gonna be the guy with the old injury who was upfront and honest with the company about the MJ use but someone who was doing it recreationally and was impaired.

    But that having been said I totally agree we need to see some things codified into law here or it’s a situation too ripe for abuse and misuse. And I really enjoy and agree with your liberty argument. I guess I”d also like to see the employers offered some liberty to set their own policies as they think they need to because many of them do have very concrete reasons why they have a drug free workplace.

    Great post! Thanks for sharing!

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    • I don’t disagree at all that an employer should have the liberty to have a drug-free workplace, but isn’t the concern about impairment on the job? The problem with drug testing with current tech is that it can’t distinguish between being high right now with having gotten high three weeks ago. And mj is about the only recreational drug where that’s true.

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      • Which is apparently part of the reason meth and cocaine are popular, to predictable socially damaging effect, while cannabis really isn’t, in oil camp country around Fort MacMurray – as long as you show up for work sober, you can be confident you’ll pee clean.

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      • Agreed, but many, many workplaces will have a pretty strong inkling that something is afoot with a worker due to their performance, so a drug test that then reveals past drug use might be handy in that case. Random tests are one thing, but a lot of places do tests only when they have some idea that a worker is coming to work impaired already.

        And this is also a way of “weeding” out workers who have historically come to work impaired on stuff stronger than MJ. My husband had guys who were coming to work on meth and coke or drunk, but ended up being fired over the marijuana test because they were savvy enough once suspicion was on them, to stop doing the worst stuff right before work. Fair? Probably not but it is understandable.

        The way drug testing works at least where my sons and husband have worked, it’s not done on site. You have to send the worker to the drug testing place and if you wait for them to be like actually high, you then have to send them over to the drug testing place also high. Not a great solution either.

        I agree they need better tests for sure, a more clearly defined set of laws, and that we need to err on the side of personal freedom. But I do think it’s a much more complex solution than it appears to be at first blush and the freedom/rights of others comes into it too.

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