Workers who legally use cannabis can still lose their jobs

Posted Mar 3, 2022, 7:55 am

Sophie Quinton

Stateline

Thirty-seven states now enable adults to make use of marijuana medically,
recreationally or each. However in most of these states, folks may be fired
or denied a job for utilizing hashish of their free time.

Hashish legalization advocates need states to do extra to guard
staff. They observe that office drug assessments don’t measure whether or not
somebody is excessive on the time of the check, simply whether or not they’ve used
not too long ago. They usually say office drug testing is an fairness situation, as
assessments are extra frequent in blue-collar jobs and disproportionately have an effect on
non-White staff. 

However sure employers are required to check for marijuana beneath
federal legislation—the federal authorities classifies marijuana as a harmful
drug akin to heroin—and others wish to be sure that they don’t make use of drug
customers who might threaten office security.

To this point, 14 states and Washington, D.C., have banned employers from
discriminating in opposition to staff who use marijuana for medical causes.
New Jersey and New York ban employers from discriminating in opposition to
staff who legally use marijuana medically or recreationally. And
Nevada bans employers from refusing to rent somebody solely as a result of they
fail a marijuana check. The legal guidelines typically make exceptions for sure
employers and occupations.

However payments have stumbled elsewhere due to opposition from enterprise
teams and disagreements over the right way to measure marijuana intoxication. A
invoice filed in Washington state this session already has been tabled. A
California invoice faces an uphill battle. And, in gentle of opposition, a
Colorado invoice will likely be softened to learning the difficulty.

The preliminary model of the Colorado invoice would have affirmed the
proper of medical marijuana sufferers to make use of hashish merchandise at work and
would have prevented employers from firing or refusing to rent staff
who use marijuana off the job.

It was all the time going to be a heavy raise: The invoice raised authorized
questions—notably concerning the medical marijuana provisions—since
Colorado’s 2012 poll measure that legalized pot gross sales affirmed
employers’ proper to limit employee marijuana use.

Inside two weeks of submitting the invoice in early February, state Rep. Edie Hooton, a Democrat, instructed Stateline she
deliberate to scrap it. As an alternative, she’ll suggest that state officers
convene employers, medical hashish customers and prescribers to review the
office testing situation.

“I knew it was going to vary,” Hooton mentioned of her preliminary invoice,
which she mentioned was modeled on draft laws backed by medical
hashish advocates in different states. “I don’t wish to be in opposition
with organized labor or employers, just like the Chamber of Commerce or
organized enterprise pursuits.”

A number of employer teams had opposed Hooton’s preliminary invoice, together with
the state Chamber of Commerce and the Colorado Mining Affiliation. The
Colorado Mining Affiliation has constantly opposed payments that will
stop employers from sustaining a drug-free office, mentioned
affiliation President Stan Dempsey.

Drug use can create office issues of safety, he mentioned. “Going again
many, a few years, corporations have had workers who’ve both been damage
or killed, sadly, with marijuana of their methods.”

Colorado state Sen. Chris Holbert, a Republican who final 12 months backed a
legislation that enables faculty personnel to manage medical hashish to
youngsters whereas they’re in class, mentioned employers ought to be capable to drug
check staff for marijuana in the event that they select. He emphasised that when
Colorado voters legalized pot, they wrote that authority into the state
structure.

However employers ought to make an knowledgeable choice, he added. “What I
actually encourage employers to know is, in the event that they’re testing for drug
use, then what’s the check or these assessments on the lookout for?”

If employers are anxious about somebody coming to work excessive, he mentioned,
they need to be asking whether or not office drug assessments measure that—and
whether or not, for example, additionally they penalize workers for utilizing
non-psychoactive hashish merchandise, resembling a hemp extract.

To check, or to not check?

Federal contractors and companies that make use of sure regulated
professionals resembling airline pilots and faculty bus drivers should drug
check staff for marijuana. Different employers have a alternative. They could
resolve to drug check staff as a part of a job utility, randomly,
after an accident, if they think a employee is intoxicated, or in all
4 conditions.

At this time many of the nation’s largest private-sector corporations have some
kind of drug testing program, mentioned Barry Pattern, senior science
advisor for employer options at Quest Diagnostics, a world
laboratory firm that processes office drug assessments for employers.

Of the assessments Quest Diagnostics processes that aren’t federally
required, Pattern mentioned, roughly three-quarters are a part of job
functions.

Quest Diagnostics’ knowledge means that drug testing for marijuana is
changing into much less frequent, with the variety of urine assessments to display for the
drug declining by 5% between 2015 and 2020.

Amazon, the nation’s second-largest non-public employer after Walmart,
introduced plans final summer time to cease requiring job candidates to go a
marijuana drug check (the corporate will nonetheless check at different instances, resembling
after office accidents). Amazon executives have mentioned that the
rising variety of states legalizing marijuana, fairness considerations and the
tight labor market all factored into their choice.

“We’ve discovered that eliminating pre-employment testing for hashish
permits us to broaden our applicant pool,” Beth Galetti, Amazon’s senior
vice chairman of human assets, mentioned in a January memo posted online. 

Dropping marijuana assessments permits employers to think about hiring and
retaining the small however rising share of candidates who use the drug.
Nationwide, 4.4% of staff failed assessments Quest Diagnostics processed in
2020, up from 3.5% in 2012. The speed was barely greater, 4.8%, in
states that enable adults to purchase leisure marijuana.

“It’s not shocking that in our testing we’re seeing year-over-year
will increase in marijuana positivity,” Pattern mentioned. “Clearly, societal
views on marijuana use are evolving.”

Firms’ ongoing struggles to recruit and retain staff might
encourage extra of them to drop marijuana assessments, mentioned Melissa Moore,
director of civil methods reform on the Drug Coverage Alliance, a nationwide
nonprofit that advocates for ending punitive drug legal guidelines.

“Throughout the labor crunch proper now, some employers are looking
at: Is that this one thing that’s not really engaging in the purpose of
office security?” she mentioned.

Employers could also be unnecessarily blocking folks from sure positions, Moore mentioned.

She additionally famous that a 2013 Yale School of Medicine study
discovered that Black and Hispanic staff have been extra possible than White
staff to be employed by a office that requires drug testing.

“Let’s be sure that we’re not placing up synthetic roadblocks that finish
up impacting, particularly, Black and Latinx workers,” she mentioned.

Security first

Legislative debates over whether or not to guard staff who legally use
hashish usually get slowed down in debates over office security and the way
to measure hashish intoxication.

It’s an issue with no resolution. There’s no Breathalyzer for
marijuana, and no nationwide authorized restrict for whether or not somebody has an unsafe
degree of psychoactive hashish compounds of their physique. 

“No drug check, in urine, oral fluid or hair, measures impairment,”
Pattern mentioned. “Simply to set the report straight. None of those assessments can
inform you how a lot, how regularly, whether or not or not somebody’s impaired. It
simply tells you that you’ve got used it.”

Hashish legalization advocates level out that hashish compounds can
linger within the physique for weeks, if not months. That makes failing a
marijuana drug check akin to failing a sobriety check since you had a
glass of wine two weeks in the past, mentioned Moore, of the Drug Coverage Alliance.

In the meantime, employer teams say enterprise homeowners ought to be capable to keep a drug-free office if they need.

The Colorado Restaurant Affiliation’s major concern with Hooton’s
authentic invoice was language permitting workers to make use of medical marijuana
at work, mentioned Mollie Steinemann, supervisor of presidency affairs for the
affiliation, in a telephone interview.

Eating places contain tight working areas and hazards from knives to
open flames and deep fryers, she mentioned. Permitting staff to make use of
intoxicating substances on the job might result in accidents and
doubtlessly the lack of an institution’s liquor license. The identical goes
for different intoxicating substances, together with pharmaceuticals and
alcohol, Steinemann added in an e-mail to Stateline.

“What we’re involved about is making it so that each one workers,
no matter place, or no matter potential threat inside a
restaurant, would simply be allowed to make use of medical marijuana,” Steinemann
mentioned. 

Pattern, of Quest Diagnostics, argued that though office
marijuana assessments don’t measure impairment, they could however flag
conduct that would predispose somebody to accidents at work. Staff are
extra more likely to fail marijuana assessments after a office incident than
after they’re making use of for a job, he mentioned. 

“Correlation doesn’t all the time equal causation, and I’m not attempting to
say it does on this case,” Pattern mentioned. “But it surely actually seems that
there could also be some affiliation.” 

Employee safety legal guidelines which were profitable in different states usually embrace exemptions for sure jobs.

Nevada’s 2019 legislation that stops employers from discriminating primarily based on a
pre-employment marijuana check, for example, exempts candidates topic
to federal drug testing and who, within the employer’s view, are making use of
for jobs that would “adversely have an effect on the security of others.” 

Such exemptions led teams that beforehand opposed the laws,
such because the Las Vegas Metro Chamber of Commerce and the Nevada Trucking
Affiliation, to take a impartial stance on it as a substitute.

Hooton, the Colorado state lawmaker, mentioned previous Colorado payments that
aimed to guard hashish customers at work failed as a result of sponsors didn’t
do sufficient to get employers, unions and different curiosity teams on board. 

“You possibly can’t have a invoice that considerably impacts employers with out
having them be central to the laws,” she mentioned—except they’re
doing one thing egregious. “That is completely nothing like that. This
is: We’d like employers’ suggestions. We’d like their participation.”

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