Should Employment Drug Tests Be Banned Where Weed is Legal?

By  //  April 8, 2021

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There are many professions where drug testing isn’t the norm. And some occupations where employees can count on regular and randomized employment drug tests. But what are the rules when you are looking for a new job, and you have your medical card?

A medical card guarantees legal impunity within the jurisdiction of a state. And you have to meet a number of different criteria in order to get one. Patients who apply for a medical card have to have a diagnosis that is approved. And they must have a recommendation from a physician—a practitioner who agrees that medical marijuana may safely help with symptom management.

So, there is a process. And where cannabis is legalized, it is constitutionally mandated that patients can have access with doctor supervision. But now, employees that have a medical card are asking questions about discrimination by employers. Can someone lose their job if they test positive for THC? Even if they have a medical card?

Sadly, the answer is yes. Review the medical cannabis programs in various states, and you will see that warning. Your medical card may protect you from getting busted for possession of cannabis. But when it comes to your job, it’s up to the employer if they want to test for THC. And that contradiction in legal protections could start to cause some big problems.

Do Americans Use Cannabis During the Workday?

If you got your medical card to help with difficult symptoms, chances are you are micro-dosing before, during, or after work. Chronic pain, muscular tremors or spasms, migraines, nausea, and other conditions can be disruptive. For some patients, if the symptoms aren’t managed, it can make it hard to focus or perform their job duties.

Some employers have a strict policy that prohibits drug use. And provide randomized testing to check for employee compliance regularly. But other organizations have realized that medical cannabis is like any other prescription medication. And to deny their employees essential medication would in itself be a constitutional violation.

Tech startups like Flowhub have taken a new approach. They have dubbed themselves a ‘weed-friendly workplace’ for employees. Located in Denver, Colorado, the company provides software for the cannabis industry. Naturally, prohibiting cannabis at work might have been a detriment to their business reputation.

But that is not the only reason why companies like Flowhub are making accommodations. They provide designated areas for employees to consume cannabis. Smoking isn’t allowed in the office building, but employees are permitted to bring edibles to work.

There is a correlation between high-performing professionals and mental health disorders like anxiety, depression, Asperger’s, Tourette syndrome, and more. Medical cannabis is also used (under doctor-supervision) to help moderate mental health symptoms. That can make for happier, healthier, and higher-performing employees. And fewer ‘mental health’ or sick days.

States Have a Constitutional Right to Legalize Cannabis: Even if the Feds Disagree

Cannabis and any other Schedule I drug listed in the Controlled Substance Act is illegal at the federal level. As cannabis legal reform sweeps America, the contradiction between state and federal laws is becoming larger. And the public is growing increasingly confused and frustrated because state and federal laws do not align.

Constitutionally speaking, individual states have the right to self-govern. That means citizens and local state lawmakers can pass laws that may not comply with federal mandates. Generally speaking, state laws comply with federal laws because the feds have jurisdiction over every region in the country.

That is pretty confusing to wrap your head around. What we see with regards to the tug of war over cannabis legal reform are the boundaries of federal reach. Or states that are asserting a new boundary, based on their constitutional freedom to provide a legal framework that state residents want. And in most states, the majority of constituents want legal weed.

When implementing cannabis legalization in the early days, the battle fought by California, Colorado and Oregon asserted the freedom to self-govern—guaranteed by the constitution of the United States of America. And that helped them as the first early adopters for cannabis legalization.

In every state with legalized cannabis, federal law still trumps state laws on specific issues. Terrorism is one of those categories, and so are drugs listed on the Controlled Substances Act (CSA). Some states want to ban the drug.

The Employer Always Has the Right to Test for Drug Use Per the Controlled Substances Act

The right to determine whether random or scheduled drug tests occur is always on the employer. As the business owner, there are safety requirements that are mandatory. And insurance liability can be astronomical if those requirements are not met.

Currently, there is no exact science to determine the intoxication of cannabis without a blood test. Or a urine test. Law enforcement can’t randomly test people in the field. Breathalyzers only work to detect alcohol levels. Although, in the State of Oklahoma, a ‘weed breathalyzer’ is being piloted with the highway patrol.

Common methods of testing can include:

■ Blood test

■ Field sobriety tests

■ Hair follicle testing

It’s not easy to tell if someone is THC impaired. There are some signs you may detect. The scent of weed. Red eyes. Perma-grin. But people who are seasoned cannabis users may show no signs at all. And they know which type of eye drops to use when they leave the house.

Some people have jobs that require them to be bondable. For commercial liability, some employers are required by the insurance company to conduct drug tests: either randomized employee testing or annual wellness checks.

Personal injuries are a concern. If an employee is impaired by cannabis and operating a machine, and they get hurt? If the employee drives a vehicle, is a pilot, or uses a commercial passenger vehicle, impairment is a big concern. This is why there is an understandable ‘zero tolerance’ policy.

Limiting the Labor and Talent Pool by Banning Employee Medical Cannabis Use

When an estimated 1 in every 4 Americans is working remotely during the pandemic, the point seems moot. Roughly 88 million Americans are still working from home in 2021 to comply with social distancing. Successfully and continuing their duties in the safety of their own home.

People with chronic health conditions seek out employment that provides that flexibility. For instance, if mobility is a struggle, working from home solves the problem. If you are an individual with diabetes who has neuropathy, the home office can be a much more productive place. And safer for the administration of insulin injections, etc.

Now, thirty-six (36) states have medical cannabis programs. And it is expected that the number will surpass forty states by 2022. As the conventional workplace continues to evolve in Covid-19, we can also expect more companies to allow employees to work from home. It can reduce costs and improve productivity, according to many studies.

Are desk jobs impacted by a low dose of THC edibles taken in the morning to ease pain or symptoms? Unlikely. But limiting the access to medicinal cannabis for the professionals who need it will. And a zero-tolerance stance by employers, combined with randomized drug testing, could result in another problem—recruitment and retention of experienced, high-performing professionals.

Hiring subject to pre-employment drug testing? Your candidate pool just shrank by a minimum of 25%. And in competitive sectors like technology, finance, marketing, and start-ups, that is a more significant impairment to consider.