By Sophie Quinton | Stateline.org (TNS)
37 states now allow adults to use marijuana medically, recreationally, or both. But in most of those states, people can be fired or denied a job for using cannabis in their spare time.
Cannabis legal advocates want states to do more to protect workers. They note that workplace drug tests do not measure whether someone was high at the time of the test, only whether they had recently used it. They say workplace drug testing is an equity issue, as testing is more common in blue-collar jobs and disproportionately affects non-white workers.
But some employers are required to test marijuana by federal law — the federal government classifies marijuana as a dangerous drug similar to heroin — and others want to make sure they don’t hire drug users who could threaten workplace safety.
So far, 14 states and Washington, DC, have banned employers from discriminating against workers who use marijuana for medical reasons. New Jersey and New York have prohibited employers from discriminating against workers who legally use marijuana for medical or recreational use. Nevada prohibits employers from refusing to hire a person simply because they have failed a marijuana test. Laws generally provide exceptions for certain employers and professions.
But bills have faltered elsewhere due to opposition from business groups and disagreements over how to measure marijuana intoxication. A bill in Washington state has already been introduced in this session. California’s bill faces an uphill battle. In light of the opposition, the Colorado bill will be watered down to study the issue.
The initial version of the Colorado bill had affirmed the right of medical marijuana patients to use cannabis products at work and would prevent employers from firing or refusing to hire workers who use marijuana outside of work.
It’s always been a heavy burden: The bill has raised legal questions—particularly about medical marijuana provisions—since the 2012 Colorado ballot that confirmed the legal pot sale the right of employers to restrict a worker’s use of marijuana.
Within two weeks of introducing the bill in early February, Democratic Representative Eddie Hutton told Stateline that she plans to scrap the bill. Instead, she will suggest that state officials invite employers, medical cannabis users, and runners-up to consider the issue of workplace testing.
“I knew it was going to change,” Hutton said of her initial bill, which she said was modeled on a bill supported by medical cannabis advocates in other states. “I do not want to oppose organized workers or employers, such as the Chamber of Commerce or organized business interests.”
Hooton’s initial bill was opposed by several employer groups, including the state Chamber of Commerce and the Colorado Mining Association. Association President Stan Dempsey said the Colorado Mining Association has consistently opposed bills that would prevent employers from maintaining a drug-free workplace.
He said drug use can create safety problems in the workplace. “Going back many years, companies had employees who were either infected or, unfortunately, killed by marijuana in their systems.”
Colorado Senator Chris Hulbert, a Republican who last year endorsed a law allowing school employees to administer medical marijuana to children while they are in school, said employers should be able to test workers for marijuana use if they choose to do so. He asserted that when Colorado voters set out to legitimize, they wrote that power into the state constitution.
But he added that employers must make an informed decision. “What I really encourage employers to understand is, if they are testing for drug use, what test or those tests are you looking for?”
He said that if employers are concerned about someone coming to work at a height, they should ask whether workplace drug tests measure this — and whether, for example, they penalize employees for using non-psychoactive cannabis products, Like hemp extract.
To test or not to test?
Federal contractors and companies that employ certain regulated professionals such as airline pilots and school bus drivers must test workers for drug use for marijuana. Other employers have a choice. They may decide to do drug testing of workers as part of a job application, at random, after an accident, if they suspect the worker is drunk, or in all four cases.
Today, most of the nation’s major private sector companies have some type of drug testing program in place, said Barry Sample, senior scientific advisor for employer solutions at Quest Diagnostics, a global laboratory company that handles workplace drug testing for employers.
Of the Quest Diagnostics that aren’t federally required, Sample said, nearly three-quarters are part of job applications.
Quest Diagnostics data shows that drug testing for marijuana is becoming less common, with the number of urine tests for the drug dropping 5% between 2015 and 2020.
Amazon, the nation’s second-largest private employer after Walmart, announced plans last summer to stop requiring job candidates to pass a marijuana drug test (the company will still test at other times, such as workplace accidents). Amazon executives said the growing number of states legalizing marijuana, concerns about stocks and a tight job market all factored into their decision.
“We have found that eliminating pre-employment testing for cannabis allows us to expand our pool of applicants,” Beth Galletti, Amazon’s vice president of human resources, said in a January note posted online.
The abolition of marijuana testing allows employers to consider hiring and retain a small but growing share of applicants using the drug. Nationwide, 4.4% of workers failed Quest Diagnostics processed tests in 2020, up from 3.5% in 2012. The rate was slightly higher, 4.8%, in states that allow adults to purchase recreational marijuana.
“It is not surprising to see in our testing an annual increase in marijuana positivity,” Model said. “It is clear that societal views of marijuana use are evolving.”
Melissa Moore, director of civic systems reform at the Drug Policy Alliance, a national nonprofit that advocates for an end to punitive drug laws, said companies’ ongoing struggle to hire and retain workers may encourage more of them to give up marijuana testing.
“During the current employment crisis, some employers are taking a look at: Is this something that doesn’t actually achieve the goal of workplace safety?” She said.
Moore said employers may unnecessarily bar people from certain positions.
She also noted that a 2013 study by the Yale University School of Medicine found that black and Latino workers were more likely than white workers to work in a workplace that required drug testing.
“Let’s make sure we don’t put up artificial roadblocks that end up having an impact, particularly on black and Latino employees,” she said.
Legislative debates about whether workers who use cannabis should be protected legally often get bogged down in discussions about workplace safety and how to measure cannabis intoxication.
It is an unresolved problem. There is no marijuana Breathalyzer, and there is no national legal limit on whether someone has an unsafe level of psychoactive cannabinoids in the body.
“No drug test, in urine, oral fluid, or hair, measures weakness,” the sample said. “Just to set the record straight. None of these tests can tell you how much, how often, and whether or not someone has a disability. It just tells you that you used it.”
Advocates of cannabis legalization point out that cannabis compounds can remain in the body for weeks, if not months. That makes failing a marijuana drug test akin to failing a sobriety test because you had a glass of wine two weeks ago, said Moore, of the Drug Policy Alliance.
Meanwhile, employer groups say business owners should be able to maintain a drug-free workplace if they want to.
Molly Steinman, the association’s director of government affairs, said in a phone interview that the Colorado Restaurant Association’s primary concern about Houghton’s original bill was language allowing employees to use medical marijuana at work.
She said restaurants involve cramped workspaces and hazards, from knives to open flames and a deep fryer. Allowing workers to use intoxicants at work could result in accidents and possibly the loss of a facility’s liquor license. Steinman added in an email to Stateline that the same applies to other intoxicants, including prescription drugs and alcohol.
“What we are concerned about is having all employees, regardless of position, or regardless of potential hazards within the restaurant, only allowed to use medical marijuana,” Steinman said.
A model from Quest Diagnostics argued that although workplace marijuana tests do not measure vulnerability, they may indicate behavior that could expose someone to work accidents. He said workers are more likely to fail marijuana tests after a workplace accident than when applying for a job.
“Correlation does not always equal causation, and I’m not trying to say that it is in this case,” Model said. “But it certainly looks like there might be some connection.”
Labor protection laws that have succeeded in other states usually include exceptions for certain jobs.
Nevada’s 2019 law that prohibits employers from discriminating on the basis of pre-employment marijuana testing, for example, exempts candidates subject to federal drug testing who, in the employer’s view, apply for jobs that could “negatively affect the safety of others.”
These exemptions prompted groups that had previously opposed the legislation, such as the Metro Las Vegas Chamber of Commerce and the Nevada Trucking Association, to take a neutral stance on it instead.
Hutton, the Colorado representative, said previous bills in Colorado that were intended to protect cannabis users at work failed because sponsors did not do enough to engage employers, unions and other interest groups.
She said, “You can’t have a bill that greatly affects employers without making them central to the legislation” — unless they do something egregious. “This is absolutely nothing of the sort. This is it: We need employer feedback. We need their participation.”