The legalisation of cannabis in the US has caused employers to consider their workplace drug policies. For some employees, that means being left fighting for the right to use legal cannabis without sacrificing their job at the hands of a drug test. The legalities get even more complicated when the disparity between state and federal law in the US is considered. How will it all work out for workers?
There is a growing population of folks who believe cannabis should be governed by the same laws as alcohol and tobacco. Seems fair and plausible, right? While weed is making strides toward a legal and cultural mainstream, its legalization also raises a conflict that has the potential to disrupt, even end, careers: workplace drug policies vs. the legal use of cannabis. New laws regarding cannabis did not take into account whether employers can terminate employees who use cannabis legally. And so, this conundrum is a phenomenon few of us anticipated.
Generally speaking, most companies will not terminate an employee for consuming alcohol after work—perhaps even on their lunch hour. Doesn’t it then seem absurd for a law-abiding citizen to lose their job for using a substance that they are permitted by law to use and that has proven in many cases to be safer than alcohol?
Fighting for the right to use legal cannabis?
With most employers’ commercial insurance policies governed by the carrier’s underwriting guidelines, proven workplace drug use—on-the-job or off-duty—would most certainly have the potential to place any claims under close scrutiny, raise premiums, and/or even nullify employers’ coverages.
This is an understandable concern for both employers and employees. However, the fact remains that working citizens who use cannabis legally, off the clock, and outside the workplace, should have the right to do so. While employers feel drug screens help identify drug abuse in the workplace and create a safer working environment—implementation of such policies are also viewed as discriminatory.
When employers take adverse action against employees based on drug use, the Americans with Disabilities Act (ADA) doesn’t currently protect employees or applicants who engage in the use of illegal drugs. The ADA defines ‘illegal drug use’ by reference to the Federal Controlled Substances Act, which continues to classify cannabis as a Schedule I illegal narcotic.
Handling the inconsistency between federal and state law
State laws that authorize the use of medical cannabis are in direct conflict with federal laws pertaining to disability discrimination—this leaves the legal obligation of employers unclear. Employees seeking authorization to use medical cannabis in connection with, or as an accommodation for, a disability may have rights under state medical cannabis statutes, but no rights under federal disability laws.
Case law in two U.S. states that have legalized the use and possession of weed under a doctor’s advice (California and Oregon) has determined that a private employer may still terminate an employee for failing a company-required drug test, even if that employee is authorized under state law to use medical cannabis. Most U.S. states have not reached a legal consensus on this issue, however.
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This challenge must consider several questions:
- With the potential for wrongful termination lawsuits increased, will these cases ‘hold water’ in a court of law? Who would prevail and under what statutes and conditions?
- Will job termination for legal use of weed, in fact, be considered discrimination? Or simply ‘workplace safety, plus risk management’ on the part of employers?
- What can employees do to protect themselves under the law until clearer ‘legal rights’ are determined?
The never-ending argument regarding prevailing laws at state vs. federal levels is raised and examined, once again. And now, this new aspect throws employer policies into the mix regarding whose rules prevail and when. It is inevitable that this clash is just one of the many new angles we must navigate as we continue the crusade to legalize cannabis.
What does the future look like?
Will we ever reach a happy medium? If so, what will it look like? Perhaps simple revisions to workplace guidelines can help resolve some of the conflict while we break new ground on this matter and await ‘reform’; revisions that protect and consider the rights of private citizens, and simultaneously ensure employers do not go unprotected. Perhaps the inclusion of clear guidelines regarding ‘no tolerance’ policies for on-the-job drug use vs. permissible use while off-duty. Perhaps employers who require drug screens should eliminate testing specifically for weed altogether—is this just a modern spin on ‘don’t-ask-don’t-tell’?
There may be a clear stance on both sides of this contention—but there is no clear ‘watershed ruling’ as of yet, to lead the way for setting a precedent on this matter. With cannabis laws changing around the world, U.S. citizens and employers are not the only factions facing the same concerns. Considering the total sum of variations on cannabis laws around the world far outnumbers the countries on this planet, a common solution is surely distant.
