The fact that 190 million Americans now live in states where marijuana has been legalized to some degree is raising a number of questions and issues about how to integrate the American workforce and marijuana consumers rights in regards to drug testing. With medical marijuana is legal in 29 states and recreational marijuana for adult use in 8 states and Washington DC, millions of responsible and otherwise law-abiding adults remain at risk of being excluded from the workforce due to a positive drug test — even where the use does not affect an individual’s job performance or has taken place days or weeks prior to the test.
NORML believes that this practice is discriminatory and defies common sense. As a result, a growing coalition of NORML Chapters in California, Oregon, Colorado and Washington have come together to advocate for necessary legislative and workplace reforms to protect responsible marijuana consumers.
NORML’s Workplace Drug Testing Coalition’s efforts will focus on these four areas:
- Reform workplace drug testing policies
- Expand employment opportunities for marijuana consumers
- Clarify the difference between detection technology and performance testing
- Highlight off-duty state law legal protections for employees
“Even though marijuana is legal and readily available in several states, consumers are being unfairly forced to choose between their job and consuming off the clock as a result of out-of-date employment practices,” said Kevin Mahmalji, National Outreach Coordinator for NORML. “That is why many NORML chapters active in legal states are now shifting their attention to protecting honest, hardworking marijuana consumers from these sort of antiquated, discriminatory workplace drug-testing practices, in particular the use of random suspicionless urine testing.”
Employer testing of applicants or employees for trace metabolites (inert waste-products) of past use of a legal substance makes no sense in the 21st century. This activity is particularly discriminatory in the case of marijuana where such metabolites may be detectable for weeks or even months after the consumer has ceased use.
With the 2017 Legislative Session underway, this issue is finally getting the attention it deserves. Legislation has already been introduced in Oregon and Washington, and is gaining traction in those states.
“Random suspicionless drug testing of applicants or employees for past marijuana use is not just unfair and discriminatory, it’s bad for business,” said attorney Judd Golden of Boulder, Colorado, a long-time NORML activist and Coalition spokesperson. The modern workforce includes countless qualified people like Brandon Coats of Colorado, a paraplegic medical marijuana patient who never was impaired on the job and had an unblemished work record. Brandon was fired from a Fortune 500 company after a random drug test, and lost his case in the Colorado Supreme Court in 2015. The Court unfortunately found Colorado’s lawful off-duty activities law that protects employees for legal activities on their own time didn’t apply to marijuana use.
California NORML is also expecting legislation to be introduced this session to address this issue. Ellen Komp, deputy director of California NORML said, “One of the most frequently asked questions we have been getting since Prop. 64 passed legalizing adult marijuana use in California last November is, ‘Am I now protected against drug testing on my job?’ Sadly in our state, not even medical marijuana patients are protected against job discrimination, and it’s a priority of Cal NORML to change that. We are hoping to get a bill introduced at the state level and are working with legislators, unions, and other reform groups to make that happen.”
NORML Chapters across the country are advocating on behalf of the rights of responsible marijuana consumers against discrimination in the workplace. “Our coalition was formed with the intention of not only educating legislators, but also with businesses in mind. It is important they know testing for marijuana is not mandatory, and that employers have testing options,” said Jordan Person, executive director for Denver NORML. The Denver chapter is currently working with companies that offer performance impairment testing of workers suspected of on-the-job impairment or use rather than unreliable bodily fluid testing to help provide options for employers.
For decades drug testing companies and others have pushed their agenda through a campaign of misinformation. Until now there has never been an organized effort to challenge the profit- driven ideology of those who seek to benefit from intrusive drug screening. Mounting evidence continues to prove there is no logical reason why adult marijuana consumers should be treated with any less respect, restricted more severely, and denied the same privileges we extend to responsible adults who enjoy a casual cocktail after a long day at the office.
For legal questions, please contact Coalition spokesperson Judd Golden at firstname.lastname@example.org. For other marijuana related questions or an interview, please contact Kevin Mahmalji at email@example.com.
Members of the Colorado Supreme Court have unanimously affirmed lower courts’ rulings that employers possess the authority to fire employees for their off-the-job use of marijuana. The Court found that the plant’s legal status under state law does not make the act of consuming cannabis “lawful” under the state’s Lawful Off-Duty Activities Statute.
The Justices opined, “The supreme court holds that under the plain language of section 24-34-402.5, C.R.S. (2014), Colorado’s ‘lawful activities statute,’ the term ‘lawful’ refers only to those activities that are lawful under both state and federal law. Therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.”
The ruling upholds the decision by Dish Network in 2010 to fire employee Brandon Coats, a quadriplegic who used cannabis to treat muscle spasticity. Coats failed a random urine screen. Such tests identify the presence of the inert metabolite (byproduct) carboxy-THC, which may be present in urine for weeks or even months after one has ceased using the substance. Consequently, the Justice Department acknowledges, “A positive test result, even when confirmed, only indicates that a particular substance is present in the test subject’s body tissue. It does not indicate abuse or addiction; recency, frequency, or amount of use; or impairment.”
The Colorado decision mirrors those of courts in California, Oregon, and Washington — each of which similarly determined that state laws exempting marijuana consumers from criminal liability do not extend to civil protections in the workplace.
According to a study published last year in the Journal of Addictive Diseases, employees who test positive for carboxy-THC do not possess an elevated risk of workplace accident compared to employees who test negative.
Full text of the decision, Coats v. Dish Network, is here.
Survey: Most Americans Say It Is “Unacceptable” For An Employee To Be Fired For Their Off-The-Job Marijuana UseNovember 13, 2013
Nearly two-thirds of Americans disagree with workplace policies that allow employers to sanction an employee for his or her off-the-job consumption of cannabis, according to a just released HuffPost/YouGov poll.
Sixty-four percent of the poll’s respondents, including 62 percent of self-identified Republicans, said that it is “unacceptable for a company to fire an employee for using marijuana during his or her free time” if the employee resides in a state that has legalized the plant’s adult use. An equal percentage of respondents similarly said that it would be unacceptable for an employer to fire an employee for after-hours drinking.
Only 22 percent of respondents said that it is acceptable for employers to fire workers who consume cannabis legally after-hours.
To date, the Supreme Court of three separate states — California, Oregon, and Washington — have all similarly ruled that an employee who uses cannabis legally while off the job can still be sanctioned by their employer.
Forty-five percent of respondents in the HuffPost/YouGov poll agreed that it should always be unacceptable for an employer to sanction an employee for his or her off-the-job marijuana use, even if the use took place in a state that classifies cannabis as illegal.
Conventional workplace drug tests detect the presence of inert drug metabolites, non-psychoactive by-products that linger in the body’s urine well after a substance’s mood-altering effects have subsided.
The HuffPost/YouGov poll surveyed 1,000 adults and possesses a margin of error is +/- 4.8 percent.
The nation’s so-called ‘drug czar’, Gil Kerlikowske, convened a press conference last week to release new government data on drug use in America. The major talking points for the presentation were two fold:
*Insist that cannabis is linked to crime
*The public sentiment in favor of legalization is an unfortunate attraction to ‘bumper sticker solutions’
One could write a doctoral thesis on Mr.Kerlikowske’s supposition and claims, but suffice for space and time, let’s let the now much more watchdog media on the issue of ending cannabis prohibition better describe what they’ve figured out about ONDCP propaganda, data and the intellectual crime of omission. (Boy, do I have a book recommendation for them…)
Slate reported on the ONDCP’s well established proclivity to throw out data and insinuate causality…using squishy terms like ‘linked':
On Thursday, Gil Kerlikowske, the director of the Office of National Drug Control Policy, announced the results of a study that—at least according to him—demonstrated a link between marijuana use and crime. The study analyzed data collected via the Arrestee Drug Abuse Monitoring program (ADAM II), which took urine samples from arrestees in five cities over a 21-day period last year. “Marijuana remained the drug most often detected in ADAM II arrestees in all five sites in 2012, ranging from 37 percent of ADAM II arrestees testing positive in Atlanta to 58 percent testing positive in Chicago,” the study reported. “In three of the five sites, over half of the adult male arrestees tested positive for marijuana.”
Kerlikowske, who opposes marijuana legalization, said in a speech Thursday that the study showed that America needs to “acknowledge and come to grips with the link between crime and substance use.” But correlation is not causation. Just because a high percentage of arrestees tested positive for marijuana does not mean that smoking marijuana made them commit crimes. Here are other things that over half of the adult male arrestees probably had in common: pants, food in their stomachs, a mother who loves them, an impoverished background, an affinity for one or more of the local sports teams.
Now, Kerlikowske only said that drug use and crime were linked, not that drug use causescrime. But still, the implications are obvious. Kerlikowske is not a stupid man, and he’s not actually a terrible drug czar. He has argued that drug abuse needs to be treated as a public health issue, not just a matter of criminal justice, and I couldn’t agree more. In his speech, Kerlikowske mentioned the need to move the drug policy reform debate beyond “bumper stickers.” One good way to do that is to move beyond studies that don’t necessarily say anything at all.
Reason’s Mike Riggs (a prolific and resourceful blogger about criminal justice matters) took the ONDCP to task one step further by busting the office for omitting alcohol related data and not informing the public more accurately about the most problematic and abused drug for incoming criminal defendants: alcohol
The White House Office of National Drug Control Policy released a study last week that found the majority of arrestees in five metropolitan areas tested positive for marijuana at the time they were booked, and that many other arrestees tested positive for harder drugs. There was one drug missing from the report, however, and it appears it was omitted intentionally. That drug is alcohol.
When I wrote up the 2012 annual report on the Arrestee Drug Abuse Monitoring Program II, I noticed that the methodology section contained a list of “data domains”; basically, a guide to the questions researchers asked each arrestee. Every question listed had a corresponding chart in the findings section of the report, save one: The data that researchers collected about alcohol consumption–how often arrestees had consumed five or more alcoholic drinks in a single session over the last three, seven, and 30 days, as well as in the past 12 months–was omitted from the report.
Schools that institute student drug testing programs are likely to experience a rise in students’ consumption of ‘hard’ drugs, according to observational trial data published this week in the Journal of Adolescent Health.
Researchers at the University of Michigan, Institute for Social Research analyzed the impact of student drug testing programs in some 250,000 high-school and middle-school students over a 14 year period. Investigators reported that random drug testing programs of the student body and programs specifically targeting student athletes were associated with “moderately lower marijuana use,” but cautioned that drug testing programs overall were “associated with increased use of illicit drugs other than marijuana.”
An estimated 14 percent of middle school students and 28 per cent of US high school students are now subject to some form of drug testing.
Urinalysis, the most common form of student drug testing, screens for the presence of inert drug metabolites (breakdown products), not the actual parent drug. Because marijuana’s primary metabolite, carboxy-THC, is fat soluble, it may be present in urine for days, weeks, or in some cases even months after past use. By contrast, most other illicit drug metabolites are water soluble and will exit the body within a matter of hours. Authors of the study speculated that students subjected to drug screens were switching from cannabis to other illicit drugs which possessed shorter detection times.
“Random SDT (student drug testing) among the general high school student population, as well as middle and high school subgroups targeted for testing, was associated with moderately lower marijuana use; however, most forms of testing were associated with moderately higher use of other illicit drugs, particularly in high school,” the authors concluded. “These findings raise the question of whether SDT is worth this apparent tradeoff.”
Commenting on the findings, the study’s lead author affirmed, “It is clear that drug testing is not providing the solution for substance-use prevention that its advocates claim.”
Previous assessments of student drug testing programs have reported that those subjected to such programs are no less likely to report consuming illicit drugs, tobacco, or alcohol than their peers.
The abstract of the study, “Middle and High School Drug Testing and Student Illicit Drug Use: A National Study 1998–2011,” is available online here.