In California and most other states where marijuana is legal, employers can still fire workers who test positive for cannabis – even if there’s no evidence they were ever high on the job.
Marijuana rights advocates want to change that, with a national campaign aimed at making sure responsible cannabis consumers are treated the same as employees who enjoy a cocktail at the end of the day.
California, Oregon, Colorado and Washington chapters of the National Organization for the Reform of Marijuana Laws have banded together to form NORML’s Workplace Drug Testing Coalition. The nonprofit group is pushing for state laws and workplace reforms that protect cannabis consumers from being fired or not hired due to what they see as a flawed drug testing system.
“One of the most frequently asked questions we have been getting since Prop. 64 passed legalizing adult marijuana use in California last November is, ‘Am I now protected against drug testing on my job?’” said Ellen Komp, deputy director of NORML’s California chapter. “Sadly in our state, not even medical marijuana patients are protected against job discrimination, and it’s a priority of Cal NORML to change that.”
Medical marijuana is legal in 28 states and recreational marijuana is allowed in eight plus Washington, D.C. Eleven states including Arizona and Nevada have passed laws that offer some protection for medical marijuana patients, Komp said. But millions of adults in other states are still at risk of losing or not getting jobs due to positive drug tests.
The issue is complicated by the unique way cannabis works in the body and limitations of current testing technology.
Signs of cannabis use can turn up in today’s commonly used drug tests long after the plant’s mind-altering affects have worn off. That makes it tough to tell whether a worker was impaired on the job or simply used cannabis a couple nights, weeks or even months before.
“Consumers are being unfairly forced to choose between their job and consuming off the clock as a result of out-of-date employment practices,” said Kevin Mahmalji, national outreach coordinator for NORML, which is based in Washington, D.C.
Legislators in both Oregon and Washington have introduced bills this year that would prevent employers from penalizing workers solely because they’ve tested positive for past marijuana use. The proposed Oregon bill would apply to all workers aside from those with federally mandated drug testing, while Washington’s bill would only help medical marijuana patients.
Prop. 64 explicitly stated that employers can still hire and fire workers in California if they test positive for marijuana.
Komp and her colleagues have been pushing to get a bill introduced in the California legislature this session that would offer protection for medical marijuana patients. She said they decided to start with focusing on the medical side, then work to expand the protections to all cannabis consumers once they had data to show whether there had been any increase in workplace accidents.
Cal NORML has had positive reactions when they’ve discussed the bill with legislators and union groups, Komp said. But so far they haven’t gotten a senator or assembly member to agree to sponsor the legislation — and the deadline to introduce bills this session is Friday. So Komp said they’re probably looking at the next legislative session before things change for workers in California.
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Colorado attorney Judd Golden, who’s a spokesman for NORML’s new coalition, said he believes random, suspicionless drug testing for past marijuana use isn’t just discriminatory. He argues it’s also bad for business, since it eliminates qualified people such as Brandon Coats from the workforce.
In 2015, the Colorado Supreme Court ruled that the satellite TV company Dish Network was within its rights when it fired Coats, a telephone operator and quadriplegic who used medical marijuana in off-duty hours to ease leg spasms.
Employers have long justified those personnel losses by arguing that drug testing is needed to keep workplaces safe. Komp disagrees, offering as evidence a study she did on states that exempt medical marijuana patients from testing. She found no increase in workplace accidents, with injuries on the job actually falling in places such as Arizona by 11 percent.
Along with pushing for legal reforms, Jordan Person, executive director for Denver NORML, said the coalition aims to educate businesses on their choices. He pointed at work his chapter is doing to encourage companies to test the performance of workers suspected of using marijuana on the job instead of relying on imprecise urine tests.
“It is important they know testing for marijuana is not mandatory, and that employers have testing options,” Person said.
Those efforts seem to be working, with a recent survey showing a 10 percent drop in the number of Colorado businesses that are testing for marijuana use.
Komp says their coalition would like to see employers move away from chemical tests entirely, since they can’t determine whether workers are still under the influence of marijuana, and move toward performance-based impairment tests, like the ones available through apps such as My Canary.
Along with protecting rights of marijuana consumers, she said the bonus of impairment tests is that they could also help detect workers who may be at greater risk of workplace accidents due to conditions such as fatigue or personal distress — which are much more clearly linked through research to poor work performance.
For any of these comprehensive reforms to take root, Komp said it’s going to take support from individuals who can put pressure on both employers and legislators.
“We’re making headway,” she said. “But we’re going to need people to start standing up for their rights around state.”
