New Mexico has joined the 15 other states and Washington D.C. in legalizing recreational cannabis. We can now enjoy the freedom of using the plant in almost any way we wish without the fear of police kicking in our doors and throwing us in jail. But that freedom only extends as far as the authorities. Employers can still keep cannabis users from getting a job, even if the state says it’s a legal pastime.
The knee-jerk reaction to this news is often an incredulous guffaw and a rhetorical question like, “By God, if I can have a beer on Saturday, then why can’t I have a joint?”
Reasonable enough. But the issue isn’t necessarily that pearl-clutching, anti-weed bosses are desperate to keep potheads out of their rosters. In many cases, employers’ hands are tied as they struggle with federal or insurance requirements.
What the Law Says
The Cannabis Regulation Act clearly states that employers have the right to terminate the employment of anyone who comes to work under the influence of cannabis or in possession of the drug. That makes sense. No one wants to be barred from disciplining an employee who shows up stoned. The law also protects employers from being forced to act against an active collective bargaining agreement.
What might be less clear to some readers is the written protection for the adoption of a zero-tolerance drug policy and the protection against being forced to take an action “that would result in the loss of a federal contract or federal funding.”
A Drug-Free Workplace
That last line is in place to protect employers who are subject to the drug-free workplace requirements outlined by the Drug-Free Workplace Act of 1988. This law requires any business or organization with an active federal grant of any kind to follow the National Drug-Free Workplace Alliance rules. If the business is receiving any federal grant funds, then they can’t knowingly hire a cannabis user—medicinal or recreational—without losing access to those funds.
Companies might take on a zero-tolerance policy for safety reasons, as well. With or without grants, an employer might believe that giving drug users of any kind access to life-threatening equipment is too dangerous to chance. This is a difficult stance to argue with as long as lives are in danger, and it’s probably best to allow employers in industries like gas and oil or construction to determine if they are willing to take the risk.
The challenge here is that current drug testing methods are sorely lacking in reasonable limits. The urine test—which most companies utilize for pre-employment and random screening—detects 11-nor-9-carboxy-delta-9-THC (THC-COOH), a metabolite that the body produces over time after breaking down the delta-9-THC in marijuana. This metabolite is slow-releasing, so it can show up in urine up to 90 days after cannabis was consumed.
That’s a long time! In the case of pre-employment testing, the practice is presumptuous at best, since no drug test exists that can determine if a person has a substance abuse disorder. Assuming that someone can’t function at a job because they have used cannabis in the last three months is pretty ridiculous. And in the case of random onsite drug testing, it’s just unfair, since a positive result by no means indicates that the person was under the influence while at work.
But fairness has no part in this. The law does not give employees and applicants any sort of protection against these sorts of practices. The Medical Marijuana Changes law adopted by state lawmakers in 2019 does protect medical cannabis users from “adverse employment action,” but only when it doesn’t “cause the employer to lose a monetary or licensing-related benefit under federal law.” So once again the Drug-Free policy wins.
That being said, in states like Colorado and Washington, where cannabis has been legal for many years, it isn’t uncommon to hear numerous unsubstantiated stories of employees from major corporations quietly overlooking positive THC results in these tests and hiring even heavy users.
Maybe it’s down-to-hang nonconformists looking to buck the system. Maybe they’re isolated incidents of corporate vigilantism. Most likely, these companies are forced to do it because otherwise they’d be having trouble hiring anyone at all in places where the dispensaries literally outnumber both Starbucks and McDonald’s locations (as is the case in both Portland, Ore., and Denver, Colo.). According to the Substance Abuse and Mental Health Services Administration, around 31.74 percent of Colorado residents between the ages of 18 and 25 reported using cannabis in the last 30 days in 2017. A whopping 48.81 percent reported using it in the last year.
At a certain point, companies might have to bite the bullet and either take the inadvisable step of lying to the government or give up their Drug-Free funds just to keep warm bodies on the payroll. The good news is that hiring cannabis users isn’t detrimental to businesses at all. In fact it can actually improve the quality of a company’s workforce.
Here’s why it’s good to hire a cannabis user: Researchers at Washington State University published a study in the Journal of Business Venturing in March that entrepreneurs who used cannabis frequently were able to produce more novel business ideas than those who didn’t use cannabis. This is probably due to long-term effects of marijuana use like increased openness. The only problem is that those creative ideas were also less likely to be as feasible as those created by non-pot-users.
The answer to this conundrum is easy. Companies have to hire people who will serve them the best—whether they smoke cannabis or not—and quit using positive THC drug test results to profile prospective employees.