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states, consumers are being unfairly forced to choose between their job and consuming off the clock as a result of out-of-date employment practices,” said Kevin Mahmalji, National Outreach Coordinator for NORML.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.
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.
[Editor’s note: This post is excerpted from next week’s forthcoming NORML weekly media advisory. To have NORML’s news alerts and legislative advisories delivered straight to your in-box, sign up here.]
Drug screening results, including those from federally certified labs, may not always be reliable, according to a white paper published online this week by the National Workrights Institute.
“[Government] certified drug testing laboratories have significant reliability problems and that the government’s assurances that false positive test results are a thing of the past is untrue,” the paper concludes.
The NWI paper bases its conclusion on several key findings. These include:
• “The accuracy of certified labs has never been tested.”
• Government certified labs do not “consistently followed federally mandated procedures for lab accuracy.”
• Federal regulations “allow labs to make mistakes on ten percent of the blind samples used in the certification process.
• “[C]ertified labs do not always maintain a proper chain of custody.”
According to the paper, documented examples of errors by federally certified labs are not uncommon. It finds, “In the last four years alone, one laboratory had its certification revoked and three others had their certification suspended.”
The paper acknowledges that federally certified labs are likely to yield more reliable results than non-certified facilities, but cautions that their procedures may still inadvertently produce false positive results.
Full text of the paper, “Latest Research Reveals New Problems With Drug Testing,” is available online here.
September 12, 2010
Opponents of marijuana legalization complain that Proposition 19 could endanger workplace safety. Employers, such as Ed Rullman of the Best Western Hilltop Inn in his Aug. 15 Op-Ed, object that Proposition 19 has a clause protecting employees against discrimination for private, adult use of marijuana. However, this is qualified by an important provision protecting employers’ right “to address consumption that actually impairs job performance.”
Why then should Proposition 19 be a problem for employers? Because they want to test employees for behavior that doesn’t affect job performance by using the inherently flawed and inaccurate technology of urine testing.
Contrary to popular misconception, urine tests don’t measure the active presence of marijuana in the system, but rather non-active chemical by-products that linger for days or weeks after any impairing effects have faded. Urine testing routinely flags the most harmless, weekend use of marijuana, while completely ignoring the No. 1 cause of drug abuse, alcohol.
Urine testing is therefore a highly unreliable indicator of impairment or job fitness. In fact, it is perfectly possible to be high as a kite and still pass a urine test with flying colors because marijuana doesn’t show up in the urine until hours after smoking. Such problems can be avoided by other, more accurate screening methods, such as blood tests, which detect the active presence of drugs in the system, or the field sobriety checks used by law enforcement in DUI stops.
But aren’t urine tests still helpful in protecting workplace safety? Scientific evidence for this is conspicuously lacking. Urine testing has never undergone the kind of rigorous FDA “safety and efficacy” studies that are required for other medical devices and drugs.
Numerous studies have found that subjects who test positive for marijuana are no more accident-prone, and in some instances even safer, than those who don’t.
A recent expert review by the Canadian Center for Addictions Research recommended against use of drug urinalysis, concluding that “urinalysis has not been shown to have a meaningful impact on job injury/accident rates.”
A study of high-tech companies found that drug testing was associated with reduced productivity, apparently because it undermines worker morale and trust. Drug urinalysis may thus be an indicator of sloppy management by large corporations who exercise poor oversight over workers.
Until recent years, it would have been laughable to suppose that American workers should be forced to submit urine samples to prove their job worthiness. The U.S. is alone among developed countries in regarding urine testing as a routine practice. In the Netherlands, where marijuana is legally available to all adults, drug testing is hardly used, yet workplace safety is substantially better than in the U.S.
The bottom line is that marijuana residues in urine pose no risk to workplace safety. In many cases, it is even preferable to let employees use marijuana for medical purposes at home so as to help avoid pain and other problems that can impair their performance.
Of course, there may exist situations where some kind of drug testing is useful in protecting workplace safety. If so, Proposition 19 specifically permits it. In no case would Proposition 19 override existing federal drug testing rules, anymore than did Proposition 215.
In general, however, Proposition 19 would benefit countless workers — pot users and non-users alike — by sparing them the degrading indignity of submitting to intrusive, misleading urine tests that have no bearing on job fitness.
NORML Outreach Coordinator and AudioStash producer extraordinaire Russ Belville has an excellent commentary on Alternet.org today deconstructing several of the myths purported by those opposed to California’s Prop. 19 (and cannabis legalization in general).
Here are the myths:
The Eight Most Absurd Excuses for Trying to Defeat Legal Pot
8. The federal government will pull all of its contracts with California businesses because they won’t be able to drug test employees!
7. Legalizing marijuana for healthy people will end medical marijuana for sick people!
6. Legalizing marijuana will never raise any money because the social costs would outweigh any fiscal benefits… look at alcohol and tobacco!
5. Big Tobacco will buy up great huge tracts of land in Northern California and mass produce lousy joints pumped full of toxic addictive chemicals!
4. Today’s pot is fourteen times more powerful than Sixties weed and will lead to more crack babies!
3. People who smoke marijuana in the same apartment building as a child will be arrested! (Not that your landlord will let you grow pot anyway.)
2. Legally home-grown marijuana will lead to outbreaks of toxic deadly molds!
1. Workplaces would be overrun by workers smoking marijuana on the job!
Read Russ’ comprehensive rebuttals to these claims here.