A Changing Tide

Throughout prohibition, employers have relied on the Controlled Substances Act of 1970 to define workplace drug policies. Most have zero tolerance procedures in place based on cannabis’ placement in the Drug Enforcement Administration’s (DEA’s) drug diversion program as a Schedule I Drug, considered harmful to society with no medicinal benefits. As each state passes voter approved initiatives allowing for the medicinal and recreational uses of cannabis, employers find themselves needing to reexamine zero tolerance workplace policies with regards to individual use.

“An employer must work with counsel to strike a balance between the applicable laws governing marijuana testing and screening, its designs for corporate culture, the limits of technology to accurately detect the presence marijuana impairment and the feasibility of satisfying recruitment and retention needs under the drug policy it creates.”

Employers in the private sector in states allowing for the possession and consumption of cannabis by adults have been affected by legalization in two ways—pre-employment screening tests do not reflect legalization, and there has been an increase in cannabis use by existing employees. Most of these companies screen potential candidates using a standard five-panel drug test, which identifies the presence of cocaine, amphetamines, PCP, opioids and cannabis. Some find themselves unable to staff key positions based on the results of these tests in recreational states. Many employers are forced to reexamine their hiring standards for this reason.

Some employers are responding to this issue by removing cannabis from pre-employment screening tests, while others are redefining policies with verbiage involving impairment rather than general use.

Human Resources professionals are also using impairment policy language to decide an employee’s fate should they fail a mandatory drug test for cannabis after hire. Managers are being trained to identify the signs and symptoms of impairment and act accordingly. Some employers offer drug and alcohol prevention training as well as counseling for employees who come forward admitting problems with illicit drug use. In all states allowing recreational use and most with medical initiatives in place, the decision to terminate employment based on the employees’ use of cannabis is protected in the language of the law. For recreational consumers, there is no legal recourse should they be fired due to a failed drug test.

Medical cannabis patients, however, in some cases do have the ability to sue an employer for wrongful termination, though most cases have been dismissed. Rhode Island, Maine and Arizona’s medical cannabis laws include language disallowing employee discrimination due to lawful medicinal use, and just recently the Massachusetts Supreme Court ruled in favor of medical marijuana patient Cristina Barbuto on July 17. Barbuto was terminated after only one day of her job, because her prescreening drug test results showed positive for the presence of cannabis. This unprecedented ruling could set the standard for litigation in other medical cannabis states.

So what needs to happen to find balance between employer drug policy and employee cannabis consumption? Attorney Dean Rocco, Chair of Labor & Employment and Cannalaw Practice Groups at Wilson Elser law firm explained to CULTURE how progress can be made going forward. “These are increasingly complex issues,” Elser said. “An employer must work with counsel to strike a balance between the applicable laws governing marijuana testing and screening, its designs for corporate culture, the limits of technology to accurately detect the presence marijuana impairment and the feasibility of satisfying recruitment and retention needs under the drug policy it creates.”

As more states move to regulate cannabis, the need for candid discussion is imperative. The best policy for a medical or recreational consumer is honesty during the hiring process. It would benefit any employee to review an employer’s drug policy thoroughly prior to employment or before deciding to obtain a recommendation to use cannabis as medicine or for recreational purposes. The tides are most certainly changing, though not soon enough to protect all cannabis consuming employees from wrongful termination.