Workplaces struggle to adapt to medical marijuana users

| September 12, 2014

Although medical and recreational marijuana has been legalized in 23 states, most employers have not yet relaxed their “drug free workplace” rules. This is causing clashes between people who rely on medical marijuana to treat ailments and tough organizations that don’t hesitate to fire employees using the drug.

In Colorado, Brandon Coats was fired by Dish Network for failing a drug test, even after he told his employer that he was taking the marijuana for medical purposes. Most companies fail to deal with those who test positive on drug tests on a case to case basis. Testing positive, whatever the circumstances are, can be reason enough to take action against an employee.

Medical marijuana

A medical marijuana dispensary in San Francisco. From KayVee.INC

Drug use illegal under federal law

The federal Drug Free Workplace Act was passed 25 years ago. Federal government employees and contractors fell under its purview, but many workplaces created requirements for their employees, too. Now, more than one in three private companies have drug testing regulations in place.

Pro marijuana users say that people should be allowed to use medicinal marijuana outside the workplace. “We’re not pushing for use at work,” says Coats’ attorney, Michael Evans. “We’re pushing for, if you’re in the privacy of your own home, you’re registered with the state and abiding by the constitutional amendment, is that an OK reason for your employer to fire you?”

Coats will be fighting for his rights at the Colorado Supreme Court on September 30.

Federal law supersedes state law in cases of conflict

In Colorado, the “Lawful Activities” statute forbids employers from firing employees for engaging in lawful activities after work hours, outside the workplace.

“That’s where everything really gets muddied up,” says Lara Makinen, the legislative affairs director in Colorado for the Society for Human Resource Management.

“We’re being told, ‘Keep your policy as it is, but proceed with caution, because if people are fired, like Mr. Coats, we probably will see lawsuits,'” she continues.

Others who have been in a similar situation as Coats have seen the effect such strict policies have on their careers. In New Mexico, medical marijuana user Donna Smith lost her job after a drug screening. “I can’t find any work,” she says.

Some workplaces are revising drug use policies

However, a few employers are trying to adapt to the new reality of workers who need medical marijuana. These companies do not test for drugs and are not concerned with what employees do after office hours, but are strict about people coming sober and alert to work.

Since there is no legal limit for marijuana, unlike alcohol, it is difficult to determine impairment. “Metabolism of a drug is done by how much a person weighs, what their body type is, how much fat content they have and how often they do the drug,” says Dr. Randy Shuck.

Marijuana plant

Marijuana grown legally in Colorado. From Brett Levin

The marijuana industry is also struggling with its drug-testing policies. Open Vape, a company selling marijuana vaporizers, looks out for employees who are disoriented and red-eyed after a break. Such employees are asked to take a computer test to check whether their cognitive abilities have been affected. The results are then compared with a test that was conducted previously (to determine the worker’s baseline skills).

Recreational marijuana use up after legalization

After Colorado and Washington legalized recreational marijuana production, sale, and use in 2012, there was much jubilation. However, many companies responded by actually strengthening their drug policies.

“People were scared they were going to have a stoned work force,” says the Mountain States Employers Council staff lawyer, Curtis Graves.

The number of those testing positive for drugs did go up. In Colorado, 2.3 percent of urine samples tested positive for marijuana in 2013, while 1.92 percent of urine samples had tested positive for the drug the year before. Washington saw a similar rise over the same period.

Florida will be voting on medical marijuana in November. In the coming months, there will be more clarity on this issue, as more states become stakeholders.

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