Ending Job Discrimination Against Marijuana Smokers

  • by Keith Stroup, NORML Legal Counsel August 10, 2015

    One of the most troubling aspects of current marijuana policy in this country, even in those states that have legalized marijuana, is the continuing job discrimination faced by those who smoke marijuana.

    In 49 states (Arizona is the sole exception), a private employer is legally free to fire anyone who tests positive for THC in their system, without the slightest suggestion the individual came to work in an impaired condition. It is a relic left over from the “reefer madness” days when marijuana smokers were considered bad people, and employers were anxious to identify smokers and get rid of them.

    Arizona does not permit employers to discriminate against legal medical marijuana users (they do not yet have legal recreational use) “unless a failure to do so would cause an employer to lose a monetary or licensing benefit under federal law or regulations.” Of course, employees in Arizona are not protected if they come to work in an impaired condition, or possess or use marijuana in the workplace. Until we manage to change federal law, that is a good model for new states to consider, as they draft either medical use or full legalization proposals.

    For those who may not know, it is important to understand that THC remains in the system for days, or for heavy, long-term users even weeks, after the individual has smoked marijuana. But the individual is only impaired for about 90-minutes after smoking. It is the impairment that should be of concern to the employer, not the off-work usage.

    The Absurdity of the ‘Drug-Free Workplace’

    For too many years, private employers have been encouraged by the federal government to drug test their employees, as a way to enforce the anti-marijuana laws. These employers who opted for what is called a “drug-free workplace,” seemed unaware of the hypocrisy of allowing workers to get drunk in the evening and come to work the following morning, while treating off-job marijuana use as a disqualifying factor, even if it occurred days or weeks earlier.

    They justified that distinction on the basis that marijuana was illegal, while alcohol was not. But with the changing marijuana policies and attitudes in this country, including four states and the District of Columbia that have legalized adult use, and a total of 37 states that have adopted some form of legal medical use, that justification no longer applies.

    Testing for THC determines only whether the individual has smoked marijuana over the last few days; it is not a test for whether one is impaired when the test is taken. Yet today, even in states where marijuana is legal, the majority of employers continue to fire good employees who test positive for THC, without any indication that the individual has ever come to work in an impaired condition. It is an ignorant and self-defeating policy that no longer has any place in the American workplace.

    Unless the off-the-job marijuana use is interfering with that employee’s ability to perform their job in a safe and efficient manner, it should be irrelevant.

    We need to better educate employers about marijuana and marijuana smoking, and convince them that drug testing, at least for the purpose of identifying marijuana smokers, is a costly waste of money for the employer and will inevitably result in the unnecessary loss of good, productive employees. Whether one enjoys a glass of wine or a marijuana joint when they relax in the evening has absolutely nothing to do with their fitness as an employee.

    Another Reagan Legacy

    Workplace drug testing was largely popularized by President Ronald Reagan, who in 1986 issued an executive order requiring federal agencies to establish regulations to achieve a “drug-free workplace,” making it clear that federal employees are forbidden to use illegal drugs “whether on duty or off duty,” and requiring drug testing for all applicants for federal employment, and for federal employees deemed to hold sensitive position.

    At that time only about 20 percent of private employers drug tested their employees. Today that number exceeds 80 percent. Private corporations have been enlisted in the war on marijuana smokers in a big way, and it will take some time and effort to turn them around. For too long, employers were made to feel that it would almost be unpatriotic if they refused to drug test their employees, that somehow they would share the blame for the perceived drug abuse problems in America. The unmistakable message was “If you love America, help us enforce the marijuana laws and drug test your employees.” And most fell in line.

    We all agree that those who operate dangerous machinery, or have the safety and welfare of large numbers of people in their hands, such as bus drivers and airline pilots, can and should be subject to random drug testing. But the vast majority of employers have no such excuse for violating their employees’ privacy.

    Influence of the Drug Testing Industry

    Another factor driving workplace drug testing is the influence of the drug-testing industry, which includes some of the former drug czars who have cashed-in on the “drug-free workplace” mantra. Most private employers have no drug abuse expertise, and they are regularly warned by those in the drug-testing industry that if they do not hire these drug-testing companies to test the urine of their employees, they will be losing valuable production by workers who are stoned on the job.

    There is not the slightest evidence that stoned employees on the job is a serious problem for employers, or that the money employers spend on these needless drug tests is money well spent. In fact, the National Academy of Sciences in 1994, following a three-year study, published a report entitled Under the Influence: Drugs and the American Workforce, which challenged the cost-effectiveness of drug testing employees.

    And the inevitable result of workplace drug testing is the loss of many good, loyal, productive employees who are fired for testing positive for THC, but who have never come to work in an impaired condition. That’s both unfair to the employees and damaging to the employer. As marijuana legalization continues forward across the country, those companies that continue to drug test for marijuana will end up in an uncompetitive position, as other more innovative companies accept the legalization of marijuana and protect their employees from job discrimination.


    As we move forward with legalization proposals in more and more states, it is important that those proposing the changes do polling to test the impact of including language similar to that adopted by Arizona voters to protect legal smokers from being fired. If the polling demonstrates that legalization can win with the anti-job discrimination provisions included, then obviously they should be. Next to stopping the arrest of smokers, ending the unfair job discrimination marijuana smokers face must be our highest priority.

    But if the polling suggests the inclusion of those job-protection provisions will cause the defeat of the initiative, then the language should be deleted and we should deal with this issue in the second phase of reform. We will continue to work to end the unfair job discrimination faced by marijuana smokers, as well as other needed improvements involving child custody and DUID issues, but it is easier politically for us to fine-tune these new laws once marijuana has been legalized and de-stigmatized, and marijuana smokers are no longer seen as criminals.

    And we should focus our efforts on better educating private employers that drug testing their employees for marijuana use is both unnecessary and a waste of resources. In the end, it is the cultural acceptance of responsible marijuana smokers as good citizens that will finally end this destructive policy.

    55 responses to “Ending Job Discrimination Against Marijuana Smokers”

    1. fireweed says:

      Please clarify a false concept in this article. You state that “THC remains in the system” for weeks on end. This is not true; it’s the THC metabolites that stay in the system, the left over parts of the tch molecule. To assert that THC is what remains in the system is going to cause some people to conclude that people do in fact remain high on marijuana for days if not weeks after smoking. This is exactly what we need to be clarifying. THe metabolites do NOT produce an altered state, they are merely remnants of the original substance.

      • Yes says:

        Good point.

        (decided there should be a break between “Good point.” and… )
        But, there probably still has not been enough science based testing to see if the metabolites do actually have absolutely zero effect on a person’s performance, judgment, etc. Too many powerful people are anti marijuana. They are just ignorant and scared. How many of these people have ever even tried marijuana? How many of those have ever smoked too much one time and never tried it again? How many of those people have ever tried alcohol one time and got too drunk and never tried IT again? And finally how many of those people have ever got too drunk that first time and somehow they never gave that another go?
        SWIM may be enjoying legal recreational and most likely safer than the driver’s out there having a couple drinks and decide they are probably fine to drive home, marijuana .

    2. Matthew says:

      Transportation workers must self-admit to six months of ‘treatment for marihuana addiction’, after immediately losing their jobs – before they may ever be rehired. This is mandated by Congress’ FMCSR, and affects America’s largest employing industry: there are 3.5 million truckers, alone. This is like the schoolyard bully taunting, “Stop hitting yourself!” We must all admit ourselves for marihuana addiction, before employers are allowed to consider us for rehire!

    3. Matthew says:

      It also appears that no products for passing hair tests actually work – and shaving your whole body constitutes refusal, which also requires being immediately fired, followed by 6 months of self admission for drug treatment – before employers in the transportation industry may even consider rehiring the worker. FMCSR contains the most onerous drug law in America.

    4. Matthew says:

      Taxi drivers, mechanics, dispatchers – countless millions upon millions of Americans, besides the truckers – must self admit to 6 months of marihuana addiction treatment, before possibly getting their jobs, back – for any metabolite in hair, etc. Never does anyone point this out, yet it’s the most critical driving force of the entire drugwar. I afraid to even use hemp soap, and the tobacco is killing me, after years of filling my bank account as a trucker. At least I’ll never borrow money again. Judged 3 Cups, years ago, and thought I’d never touch tobacco. It’s killing me. Donated a couple grand to the victory, last year… sober as a judge, hauling 18 wheels.

    5. Greenly says:

      This is the only reason that I don’t smoke!

    6. Msgt Vance says:

      Just had a guy in the paper railing about what would happen to his business if pot is legal and about drug testing. Turns out this guy does not test his employees now but thinks if pot is legal he will have to. I set him straight but he probably didn’t listen!

    7. Just An Observer says:

      How do you make a lazy potsmoker? Fire a hardworking one…LOL! Keep going with silly “purity” tests and pretty soon we’ll run out of those “pure” enough to work.

    8. Ezequiel Roa says:

      In 2011 ex-Governor Jan Brewer singed HB 2541. This HB 2541 gives Companies the right to discriminate against us Cannabis Patients here in Arizona. How do I know this? This happened to me with my ex-employer. After 7 years of working for a transportation company they fired me just for being a Cannabis Card holder. Yes, I did try and get a lawyer until I found out about HB 2541. This has to stop! All of these companies should educate themselves about Cannabis and our Endocannabinoid System.

    9. Ronald Lopez says:

      I agree I used a to work a business were they let you have a job just so long as your UA has less thc then when first tested even dispite its medical . so unlawfully discriminated against it even though its prescribe to me. If that’s not bias I don’t know what is.

    10. Tom Rector says:

      Drug testing is responsible for the overdose epidemic.