Let's say you're a person who smokes weed. Maybe you live in California, Massachusetts, Nevada, or Maine—one of the four states that legalized recreational marijuana this month, or the four others where it was already legal. Or maybe you have a prescription to use weed for insomnia, or back pain, or chronic illness, in one of the 28 states with medical marijuana policy on the books. Maybe you roll your own joints; maybe you use a bong. It doesn't really matter.
Now let's say you, a person who smokes weed, are applying for a new job. There's the usual rigmarole—the sending of your résumé, the interview, the formal offer letter. And then the drug test. It seems old-fashioned, but more than half of all employers still ask new hires to pee in a cup to test for narcotics, amphetamines, and yes, marijuana.
You might think this is unfair. You might even think it's illegal, since you and the other people in your state exercised your democratic rights to legalize marijuana where you live. That's what Brandon Coats thought when he was fired from his customer service representative job at Dish Networks for failing a random drug test. Coats had a license and a prescription to use medicinal marijuana. So when he got fired, he was confused: Medical marijuana had been legal in Colorado since 2000. How could his company fire him for doing something totally legal?
Coats could be the poster child for medical weed. He's a quadriplegic, wheelchair bound since age 16, and was prescribed marijuana to treat the persistent leg spasms that come with his paralysis. So when his case went all the way up to the Colorado Supreme Court in 2015, it seemed like few pot smokers could be more sympathetic than him. But the court ruled against him, deciding it's not illegal to discriminate against employees who use weed, medically or recreationally. Dish Networks was perfectly within their rights to fire Coats, and your company can probably fire you, too.
"It's perfectly legal for an employer to fire you for legal off-duty behavior, so making marijuana legal doesn't mean anything," said Lew Maltby, the president and founder of the National Workrights Institute, a nonprofit group that advocates for employees' rights.
There are two main issues here: First, while individual states have legalized marijuana, it's still illegal—and a Schedule I drug—on the federal level. Federal laws supersede state laws, which basically invalidates any claim that marijuana is legal at all. Or, as Maltby put it, "Legal means legal, not half-legal."
Second, in most states, your employer can actually discriminate against you for the things you do outside of work. (Certain things like race, religion, or sexual orientation are protected.) In 2000, a man in Louisiana—who, by all accounts, was a model employee—was fired from his job for cross-dressing in his free time. A federal judge ruled that his employer could legally do so, because there's no law saying your boss has to be a decent person.
A handful of states specifically prohibit employers from discriminating against employees who use medical marijuana, according to Sachi Barreiro, the employment law editor at Nolo, a publisher of DIY legal guides like Your Rights in the Workplace. In those states—like Connecticut, Rhode Island, and Arizona—people who have prescriptions can't get fired for failing a drug test. But those states are in the minority, and no states with recreational marijuana laws offer similar protections.
Other states—like California, Colorado, and New York—have stronger protections for employees' rights to do what they want when they're off the clock. In California, for example, your boss can't fire you just because you're dating an executive from your company's main competitor. (That actually happened.) But the question of marijuana use is still tricky. Barreiro pointed out that Colorado has some of the strongest protections for employees' off-duty behavior, and even there, the state Supreme Court ruled in Coats's case that employees who use marijuana aren't protected. A number of other medical marijuana patients in other states have sued for wrongful termination, and every single one of them has lost.
Edward Yost with the Society for Human Resource Management, an association for HR professionals, told me that individual employers can make exceptions to their own drug policies or nix drug tests altogether, but it's unlikely for employers to do so unless they're legally obligated. Part of the reason is that employers generally get a discount on their workers' comp insurance premiums for having a drug-free workplace policy. In many cases, employers can also reject claims for employees who fail a drug test, like the tree trimmer in Tennessee who fell ten feet out of a tree and was denied any workers' comp payout because a urine test indicated marijuana use.
"You're going to experience fewer [workers' comp] claims if you're prohibiting that sort of behavior in the workplace, so there's almost immediate payback just for implementing the policies," Yost told me.
Legal weed or not, a sea change in how employers drug test their employees probably won't happen anytime soon. Maltby has been writing about the problems with drug tests since the 1980s, pointing out that they're expensive, ineffective, and really easy to cheat. But not much has changed over the years. There's less random drug testing now, but pre-employment drug testing is still the norm for most companies and the legalization of marijuana hasn't changed that.
"Part of this is just politics," Maltby told me. "Nobody wants to be the company that doesn't drug test because they think it will look bad."
If you do find yourself asked to take a drug test in a state that's legalized weed, Maltby said you're "essentially out of luck"—but it's worth talking to your employer about your drug use before taking the test, just in case.
"Pre-employment drug testing is sort of a joke," Maltby told me. "We all go through this ritual where recreational pot smokers switch to martinis when they're doing a job search, and when they get the new job, they go right back to marijuana. Employers know it. They aren't stupid. So there are probably some who will hire people who fail a drug test."
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