On October 17, Canada became the second country in the world after Uruguay and the first developed country to legalize the sale and consumption of recreational cannabis. Under the new law, adults will be allowed to possess up to 30 grams of dried cannabis—available for purchase only from government stores—and in most provinces will also be allowed to grow a maximum of four marijuana plants per household. Many of the details of regulating legal marijuana have been left to Canada’s 13 provinces and territories to decide for themselves, however, leading to potential variation from province to province in key regulatory issues such as the rights of employees who use the drug and their employers.
Smoking marijuana in workplaces remains illegal (as is smoking of any kind), but questions remain over whether Canadian organizations will be able to regulate their employees’ cannabis use off the clock and off the worksite. Workers in some fields will still face strict standards, the New York Times explains:
Employees who handle dangerous products or operate heavy machinery may face stepped-up or new drug tests. Airline pilots face tough restrictions on how near to the start of shifts they may use marijuana. The armed forces will have specific orders for its members and the Calgary Police Service has banned pot use by off-duty officers. The Royal Canadian Mounted Police and Toronto’s police force will ban most officers from using marijuana within 28 days of reporting for a shift.
Impending legalization had raised anxieties among employers in safety-sensitive industries, who were unsure of what measures they would legally be able to take to prevent employees from working while high. Part of what makes these claims difficult to adjudicate is that there is no simple metric for measuring marijuana intoxication; the chemicals in cannabis remain in the body for several weeks after it is used, and current drug testing protocols can’t determine precisely whether an individual smoked an hour ago or two days ago.
A recent court ruling has added to the small but growing pile of jurisprudence at the intersection of marijuana legalization and labor law. In a decision handed down on September 5, a federal court in Connecticut found that Bride Brook, a federal contractor, had run afoul of that state’s Connecticut Palliative Use of Marijuana Act (PUMA) by rescinding a job offer to Katelin Noffsinger, a medical marijuana user, after she tested positive on a pre-employment drug test. The court granted summary judgment to Noffsinger but declined to award her attorney fees or punitive damages, Jackson Lewis attorney Kathryn J. Russo explains:
Bride Brook argued that its refusal to hire Noffsinger is allowed by an exception to PUMA’s anti-discrimination provision (when “required by federal law or required to obtain federal funding”). It argued that the federal Drug-Free Workplace Act (DFWA) barred it from hiring Noffsinger because that law prohibits federal contractors from allowing employees to use illegal drugs. Marijuana is illegal under federal law. The court rejected Bride Brook’s argument, noting that the DFWA does not require drug testing and does not regulate employees who use illegal drugs outside of work while off-duty. …
Bride Brook also argued that it did not violate PUMA because it did not discriminate against Noffsinger based on her status as a medical marijuana user; rather, it had relied on the positive drug test result. The court dismissed this argument, concluding that acceptance would render a medical marijuana user’s protection under the statute a nullity.
While possession and sale of the drug remain illegal under federal law, as more states relax their prohibitions on either medical or recreational marijuana, this has created legal conundrums for employers, who must rethink their zero-tolerance drug policies lest they end up in the same situation as Bride Brook.
In a quarterly forecast released in late May, the Oregon Office of Economic Analysis mentioned almost in passing an issue that could complicate the Pacific Northwest state’s recent track record of robust economic growth:
At least anecdotally, more firms are reporting trouble finding workers who can pass a drug test. Given the tight labor market, and legal recreational marijuana up and down the Left Coast, these reports are a bit surprising. It may be that the pool of available applicants has shifted; that individuals who can pass drug test already have a job. It may be for insurance‐related reasons that employers are ensuring they have a drug‐free workplace, even if it means monitoring their employees behavior on their own time. However it is possible that these anecdotal reports reflect a broader increase in drug usage that would be both an economic and societal problem.
Oregon’s unemployment rate is currently hovering at around 4.1 percent, the report notes, just above the historically low rate nationwide. With such a tight labor market overall, the need for employees who can pass a drug test could be putting some employers in a real bind. Although Oregon’s economists are writing from anecdotal evidence, this is a phenomenon we’ve seen in other parts of the country as well, with many employers rethinking their drug-free workplace policies in light of the labor crunch.
Some organizations simply don’t think drug testing employees outside safety-sensitive roles is worth the cost anymore, especially for relatively benign marijuana use. Even Labor Secretary Alexander Acosta has hinted that it might be appropriate for some employers to stop automatically disqualifying candidates for failing a marijuana test. Cannabis remains highly illegal under federal law, classified as a Schedule I narcotic, and this national policy seems unlikely to change in the near future. The drug has been legalized for medical use in 30 states and for recreational use in eight of those states, plus Washington, DC. This means employers throughout the country are facing a growing population of current and potential employees who now have a legal right at the state level to use marijuana.
Maine was one of several US states where voters passed measures to legalize the use of marijuana for recreational purposes in 2016. Republican Governor Paul LePage has sought to stymie legalization by blocking implementing legislation. Last November, LePage successfully vetoed the first version of this legislation, and late last month attempted to veto a second version, but both houses of the state congress voted on May 2 to override his veto, UPI reported. The rules in the final bill are somewhat less permissive than those initially approved by voters with regards to the regulatory mechanisms under which legal marijuana can be grown and distributed in the state.
Other aspects of the voter-approved ballot measure, such as its provision protecting marijuana users against employment discrimination, have already gone into effect. That provision, which went into effect February 1, prohibits employers from refusing to employ or otherwise penalizing anyone over the age of 21 on the basis of their using marijuana, provided they are not using it during working hours or on the employer’s property. That has significant consequences for Maine employers’ drug policies, as a positive test for marijuana would no longer be sufficient cause for terminating an employee (current testing methods can only detect whether an individual has consumed cannabis within the past few weeks, not whether they are currently under the influence).
The implementing legislation, however, contains different language regarding how employers can and cannot treat employees who use marijuana, Seyfarth Shaw attorneys observe at their dedicated marijuana-law blog, The Blunt Truth:
Should US employers still be rejecting candidates or firing employees for using marijuana? Maybe not, US Secretary of Labor Alexander Acosta suggested in comments to Congress this week, according to Politico’s Morning Shift:
Acosta said Tuesday that employers should rethink the practice of drug testing every job applicant, which he suggested could keep qualified people out of the workforce. Acosta’s remarks came in response to a question from Rep. Earl Blumenauer (D-Ore.) during a House Ways and Means Committee hearing. Blumenauer, who’s from a state that legalized recreational marijuana, said he’s concerned that legal pot shows up “in ways that are disqualifying” on drug tests, and asked Acosta what could be done to “unleash” those workers’ potential.
“There are sometimes valid health and safety reasons why an individual that cannot pass a drug test shouldn’t hold a certain job,” Acosta said. However, he also said some employers “make the assumption that because there’s a negative result on a test they would not be a good employee.”
Acosta was testifying in a hearing on Jobs and Opportunity: Federal Perspectives on the Jobs Gap, part of a series of hearings the committee is holding as it prepares to reauthorize the Temporary Assistance for Needy Families (TANF) program. While the secretary did not say in so many words that employers should stop drug testing their employees, he expressed the opinion that “it’s important to take a step back … and ask, are we aligning our drug policies and our drug testing policies with what’s right for the workforce?”
Blumenauer’s question to Acosta and the secretary’s less-than-categorical answer both reflect the significant degree to which employers are being forced to rethink their drug policies in light of changing attitudes toward cannabis and the growing number of jurisdictions where it has been decriminalized or legalized for either medicinal or recreational uses. Businesses have begun lobbying the Trump administration to issue guidelines on how to navigate the conflict between federal drug laws—under which marijuana is still classified as a Schedule I substance along with heroin, ecstasy, and LSD—and increasingly liberal state laws.
Wednesday morning, the Internet was abuzz with the news that former House Speaker John Boehner had joined the advisory board of Acreage Holdings, a company that grows, processes, and distributes cannabis in states where the drug has been legalized, as had former Massachusetts Governor Bill Weld. The two former politicians, both Republicans, claim never to have tried the drug themselves, but Weld, who was the Libertarian Party candidate for vice president in 2016, has advocated legalizing medical marijuana since the early 1990s. Boehner, by contrast, once said during his time in the House that he was “unalterably opposed” to legalization.
The former congressman attributed his dramatic reversal on the issue to the potential for cannabis as a safer substitute for opioid painkillers, as well as the considerable number of nonviolent drug offenders in the US prison population. Boehner’s change of heart is more than just a quirky political news story, however; it speaks to the rapid pace at which mainstream acceptance of marijuana is growing, even as the drug remains illegal under federal law. Attorney General Jeff Sessions opposes legalization and in January withdrew assurances given by the Obama administration that the Justice Department would not seek to prosecute marijuana users or dispensaries in legal states, but more and more states are moving to decriminalize or legalize the use of marijuana for medical or even recreational purposes.
These changes have major implications for employers, many of whom are unsure how these new laws affect their workplace drug policies, or are beginning to wonder whether rejecting a candidate or firing an employee on the basis of their testing positive for marijuana is actually counterproductive in an uncommonly tight labor market. The latest benchmarking survey from the background-check firm HireRight found that 67 percent of US employers now have policies addressing medical marijuana use, Amy X. Wang reports at Quartz, compared just when 21 percent who said they had such a policy or planned to develop one six years ago.
For a growing number of US employers, the answer is “no,” Rebecca Greenfield and Jennifer Kaplan report at Bloomberg, pointing to organizations like Excellence Health, a 6,000-employee company which stopped testing candidates outside safety-sensitive roles for marijuana two years ago and now no longer bothers drug testing them at all:
We don’t care what people do in their free time,” said Liam Meyer, a company spokesperson. “We want to help these people, instead of saying: ‘Hey, you can’t work for us because you used a substance,’” he added. The company also added a hotline for any workers who might be struggling with drug use.
With marijuana becoming legal in more states, a historically tight labor market, and rising rates of illegal drug use (particularly cannabis) causing the number of candidates who can pass drug tests to dwindle, more employers are finding that a zero-tolerance approach to drugs is no longer effective. Like Excellence Health, many have shifted their policies on drug use toward helping employees who struggle with abuse and addiction instead, treating drugs primarily as a health and safety issue rather than a legal issue.
This is particularly true for employers in states that have legalized marijuana, such as Colorado, Greenfield and Kaplan note. Others are moving in the same direction, however, though some are not eager to advertise their softening stance on drug use. Amid a rise in the number of American adults who use drugs and a growing recognition that smoking pot doesn’t disqualify an employee from most jobs any more than drinking alcohol does, pre-employment drug testing “is no longer worth the expense in a society increasingly accepting of drug use,” they write: