[Canniseur: The courts are finally starting to turn around on the question of workers rights within legal medical or adult-use cannabis. 15 States have made progress, while California, Michigan, Oregon, or Washington do not have protections in place.]
Advocates increasingly assert that cannabis legalization is not fully realized unless workers are guaranteed their right employment even if they partake of the herb off-hours. Some states are finally taking measures to rein in the use of urine test results as an excuse to fire or turn down job applicants.
If you use cannabis on your own time in a state where it is legal, should that be grounds for terminating your employment or rejecting your application for a job? Advocates are starting to say no, and demanding action to protest workers’ rights to use cannabis without the fear of the sack and unemployment.
Some states have already made progress in this direction. Yet California, which led the way toward opening legal space for cannabis with the Propositio 215 medical marijuana initiative in 1996, is not among them. Neither 215 nor the Prop 64 adult-use legalization initiative exactly 20 years later provided any such protections.
California Out of the Vanguard
California’s Supreme Court actually ruled on the question in 2008, finding that Prop 215 does not protect workers’ rights. The high court dismissed a suit brought by Gary Ross, an Air Force veteran who suffered from a back injury sustained during his military service. Ross sued under the state’s Fair Employment & Housing Act (FEHA), charging that he had been wrongfully denied employment by RagingWire Telecommunications after testing positive for cannabis use. The court found that 215 did not create a general right to use medical marijuana, but only protected patients from criminal prosecution.
Later that year, the State Legislature passed a law to correct this situation, making it illegal for employers to discriminate against workers in non-safety-sensitive jobs for using medical marijuana. However, it was vetoed by then-governor Arnold Schwarzenegger.
The California chapter of the National Organization for the Reform of Marijuana Laws (NORML) has launched a campaign to instate employment protections for cannabis users.
Progress in 15 States
Fortunately, things are looking a little better elsewhere in the United States. Fifteen states have passed laws making it illegal for an employer to discriminate against either an employee or job applicant who uses medical marijuana as permitted by state law. These states are Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island and West Virginia.
In June, Nevada became the first state to actually ban pre-employment cannabis testing altogether — for workers not in public safety positions, an inevitable exception. The law was signed by Gov. Steve Sisolak and will take effect next year.
In Maine, which voted to legalize adult-use cannabis in the same 2016 elections that California and Nevada did, employers are not allowed to discriminate based on cannabis use. This was written into the text of the Pine Tree State’s 2002 medical marijuana law. However, there are no laws that directly address drug testing.
There is likewise a sense of the tide turning on the judicial front. After years of upholding employee firings for use of cannabis even under state medical marijuana programs, the courts are finally starting to turn around on the question. The rights of Massachusetts medical patients were upheld in state court last year, as were those of patients in Rhode Island and Connecticut.
In February of this year, another such victory was reported from Arizona — this time in the federal courts. Carol Whitmire, a former Arizona Walmart employee and card-holding medical marijuana patient who was fired after testing positive for cannabis, won a wrongful termination suit in the U.S. district court in Phoenix.
A remedy from Capitol Hill may also be in the works. Legislation introduced in the House of Representatives this year would protect the jobs of federal employees who use cannabis in states where their use is currently legal. The Fairness in Federal Drug Testing Under State Laws Act would prohibit cannabis drug-testing “from being used as the sole factor to deny or terminate federal employment for civilian positions at executive branch agencies if the individual is in compliance with the marijuana laws in their state of residence.”
And the Golden State, which has long been at the forefront of expanding freedom for cannabis users, may soon be catching up with Nevada, its supposedly more conservative neighbor to the east. California NORML asserts: “Employment drug testing has been shown in federal studies not to improve worker safety, but it’s a great way to discriminate against cannabis consumers. We hope to sponsor a bill that will truly make marijuana legal for all adults and educate unions and employers about the needlessness of drug testing.”