Drug Testing In Post-Pot Legalization America

Drug Testing In Post-Pot Legalization America

By Dr.Fourkan Ali

As marijuana legalization becomes more of a reality, employers are being forced to decide between doubling down on drug policies or becoming more lenient.

Another round of U.S. states seeking to legalize and regulate marijuanafor recreational use is gearing up for this election day in November. They include Nevada, Arizona, Maine, and, of course, California. 

Meanwhile, employers in these states are considering just how legalization will affect the workforce, and thus, employee drug-testing policies. Since marijuana is still categorized as a Schedule I substance under federal law, this presents a legal gray area for employers in states where it has been (or will be) legalized to some degree. 

“Once [marijuana] is legalized, that will protect you from prosecution. However, it doesn’t protect your job,” according to HR expert Edward Yost of the Society for Human Resource Management. “The one thing that’s not clear to both employee and employer are those protections,” he told LA Weekly.

Colorado, which legalized medical marijuana in 2001 and recreational marijuana in 2012, has demonstrated this by example. In May 2010, a Dish Network employee named Brandon Coats tested positive for THC in a random drug test. Though Coats is a quadriplegic and a medical marijuana patient, he was ultimately terminated for violating the company’s zero-tolerance drug policy. Ultimately the case went to the Colorado Supreme Court, which ruled in favor of Dish Network.

According to a report by Assurex Global, under Colorado off-duty conduct laws, employees cannot be punished for engaging in lawful activities outside of work. And since medical marijuana has been legal in Colorado since 2001, using it to treat painful muscle spasms (as Coats did) is technically a lawful activity in the state. However, the court determined that to be afforded this protection, employees’ activities should be “lawful” under both state and federal law. And since cannabis is still illegal under federal law, they decided that the Dish Network had the right to fire Coats.

This case is a good representation of the general approach that Colorado employers have taken in a legal marijuana landscape. According to the Guardian, most lawsuits involving marijuana laws and the workplace have ruled in favor of the employer. And according to a survey by the Mountain States Employers Council, it seems that, at least in Colorado, more than one in five employers are moving toward a “more stringent” approach to employee drug testing. 

It seems fairly obvious that pot legalization will lead to an increase of positive drug tests, but the potential downside is that this could bring up an increasing number of privacy issues for many employees, employment attorney James Reidy told the Guardian. In Colorado, the number of positive employee drug tests for marijuana increased by 20%between 2012 and 2013. And in that same time period, Washington state—which also legalized marijuana for recreational use in 2012—the number of positive employee drug tests for marijuana rose by 23%, according to Quest Diagnostics.

While some say we’d be better off doing away with employee drug testing altogether, even the FBI is having trouble balancing federal law and the growing acceptance of marijuana. In May 2014, FBI director James Comey “joked” that the Bureau was having trouble finding qualified hackers who wouldn’t fail a drug test. “A lot of the nation’s top computer programmers and hacking gurus are also fond of marijuana,” he said at the time. “I have to hire a great workforce to compete with those cyber criminals and some of those kids want to smoke weed on the way to the interview.”