By Keith Stroup, NORML Legal Counsel
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.
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.