Photo Gracie Malley for Cannabis Now

Although medical marijuana is now legal in more than 30 states, employees who participate in these programs are not exactly given the freedom to use the herb for their respective health condition without the risk of consequence. One of the biggest concerns is registered medical marijuana users can actually be fired from their jobs for simply going along with a policy that the state considerers perfectly legal. It’s a problem that mostly exists because there is not yet an effective drug testing method out there that distinguishes between impairment and after hours use. Some lawmakers have taken notice of this hiccup of injustice and they’re using the 2019 legislative session to correct it. Others are even working to ensure it is never an issue, to begin with.

In New Mexico, a push to legalize recreational marijuana could include protections for workers that smoke weed off the clock – regardless of whether that use is for medical or recreational purposes. The legislation is designed to make it unlawful for a company to lay down the fury against an employee based on a positive drug screen for marijuana. It would also prevent employers from taking action against their workers based on after-hours conduct deemed legal by the state. In fact, the only way a business could build a case against an employee who uses marijuana is if they could demonstrate “by a preponderance of evidence that an employee’s lawful use of cannabis has impaired the ability to perform the employee’s job.” So, as long as a person’s work performance is up to speed, their marijuana consumption could not be grounds for suspension or termination.

This is an important next step in the discussion over marijuana legalization. As it stands, federal and state judges in many cases have ruled that medical marijuana patients are not under any shield from policies associated with a drug-free workplace. This is especially true when it comes to recreational marijuana, yet the medical side has been no exception.

“There are no protections right now in New Mexico for workers who use medical marijuana legally,” Albuquerque attorney Jason Bowles told the Albuquerque Journal.

Farther east, it’s the same situation.

Although Massachusetts made marijuana fully legal a couple of years ago, workers there can still be fired if a company requires random drug testing as part of its employment policy. However, lawmakers recently filed a measure intended to combat this unsavory condition. The gist of the proposal is very similar to what is being discussed in New Mexico. It would protect employees from termination for simply testing positive for weed. The measure forces companies to dig up more evidence – making it necessary for them to prove the worker was impaired on the job before taking any disciplinary action.

Meanwhile, some states are making a push in 2019 to confuddle this debate even more. While some lawmakers are working to give marijuana users more rights when it comes to holding down gainful employment, others are fighting to make cannabis consumption nearly impossible for workers in certain positions. In Oregon, a redrafted proposal from 2017 wouldn’t allow pot consumption for those under collective bargaining agreements, nor would it provide clearance if a “bona fide occupational qualification” is necessary to do a job.

Most companies are just so worried about employees working impaired that it has been difficult for lawmakers to come to any sort of agreement on how to handle the issue. “Of the number of executives we have interviewed on the topic of labor, their main concern is impairment while working,” Beau Whitney, a senior economist with New Frontier Data, told the Salem Statesman Journal.

Even in Canada, where marijuana is completely legal nationwide, the manufacturing trade is pressuring lawmakers to give them the right to fire workers who test positive for marijuana. This sector is hoping the government will impose a zero-tolerance policy on cannabis use for the 1.7 million workers in the manufacturing trade. In their mind, it’s all about safety – the same as mandatory use of protective eyewear. “I think for any heavy industrial machinery where lives are at risk, I think zero tolerance is the only option,” said Jonathon Azzopardi, chairman of the Canadian Association of Mold Makers. “We have to wear safety glasses when we’re on the shop floor. Both parties are punished, and there’s a zero-tolerance level for not wearing safety glasses.”

Companies in some legal states, however, are starting to relax their policies on drug testing just to fill positions, according to experts. “Employers are starting to adjust pre-employment drug screens, particularly in legal states, so that they have access to more workers. So the market is starting to adjust on its own,” Whitney said.

Nevertheless, marijuana users will likely continue to be discriminated against in the workplace until one of two things happen: Either a drug test emerges that is effective at gauging impairment – something that is needed on so many levels – or the federal government legalizes marijuana nationwide. Only then, will cannabis start to be viewed as a substance similar to alcohol and given some leniency in the workplace.

TELL US, have you ever been denied employment due to a failed drug test for cannabis?