Labor Day was adopted nationwide in 1894 as a “yearly national tribute to the contributions workers have made to the strength, prosperity, and well-being of our country.” Since that first Labor Day celebration 121 years ago, we have made significant improvements to the laws and policies that promote worker safety and well-being. However, as more states have passed laws allowing the use of medical marijuana, we’ve made very little progress clarifying how to protect these patients from discrimination in the workplace. Zero tolerance drug policies unfairly put these employees at risk of losing their jobs.
In every state, except Arizona, Delaware, and most recently Minnesota, the law allows a private employer to fire anyone who tests positive for THC (the compound in cannabis that makes an individual feel “high”), without having to prove that the employee was actually impaired on the job. Arizona, Delaware and Minnesota do not allow employers to discriminate against legal medical marijuana users “unless a failure to do so would cause an employer to lose a monetary or licensing benefit under federal law or regulations.” Because the legalities in each state are changing so rapidly, it’s always advisable to seek out an attorney if you have specific questions or concerns.
Employer Concerns
As more and more states legalize the use of medical marijuana, employers are understandably concerned about worker productivity, workplace safety, and the risk of violating federal law. “You’re going to have litigation, and you’re going to have accidents,” said Peter Bensinger, former head of Drug Enforcement Administration, Illinois, describing the impact to the Illinois business community. Seth Brickman, a management liability manager, warns that continued expansion of marijuana use for medical purposes into states across the country is creating an “emerging and pervasive underwriting concern.”
Drug Test Technology Doesn’t Prove THC Impairment
Zero tolerance drug policies unfairly allow employers to fire an employee who tests positive for THC, even if that employee was completely unimpaired on the job. These pass-or-fail drug testing kits are looking for the compound, THC-COOH, which is a metabolite that is stored by the human body and released over a long period of time—sometimes weeks after the euphoric effects have worn off.
According to NORML, regular cannabis users may test positive for seven to 100 days with a urine test, two to seven days with a blood test, and months with a hair test. Newer saliva tests show a smaller window of time, but they aren’t considered reliable enough for use yet.
Positive Test Results Rising
Drug testing policies are affecting more of us than ever before. While there are no hard numbers on how many workers who are approved for medical cannabis test positive, or how many of those individuals are then refused a job or fired, we do know that cannabis is 
the most common substance flagged on tests nationwide, and the number of people testing positive for it rose fourteen percent last year over the previous year.
According to a Quest Diagnostics report, of 6.6 million tests administered, 2.4 percent (154,000) were positive in 2014, compared to 2.1 percent in 2013. Surprisingly, the rates didn’t increase in Colorado and Washington State, despite the newly allowed use of recreational marijuana.
Dr. Barry Sample, director of science and technology at Quest Diagnostics, (a man whose name clearly predicted his destiny) speculates that the Colorado and Washington results showed a leveling off from the sharp increases in those states from 2012 to 2013.
He points out, “We also find it notable that the national marijuana positivity rate increased as much as it did in 2014, and question if this means that people are more accepting and therefore more likely to use marijuana recreationally or for therapeutic purposes than in the past even in states where marijuana’s use is not clearly sanctioned by state laws. This will be an important area of continued analysis given the national debate about the legality and health impacts of recreational and medicinal marijuana use.”
Courts Are Siding with Employers
As of right now, the employers are winning that debate handily. A number of court cases have found in favor of the employer for firing a medical-cannabis-using employee.
Mike Johnson, an employee of Columbia Falls Aluminum Company, began using medical cannabis for pain caused by a workplace accident. He failed a drug test and was suspended and then terminated when he didn’t take another one. The Montana Supreme Court sided with the company in 2009, noting that the state’s Medical Marijuana Act does not protect an employee from being fired for using marijuana, and the discharge did not violate the Montana Human Rights Act or the federal Americans with Disabilities Act.
An employee at Emerald Steel Fabricators in Oregon was hired on a temporary basis to operate a drill press. The company wanted to hire him full-time, so he disclosed that he used medical cannabis for “anxiety, panic attacks, nausea, vomiting, and severe stomach cramps.” The company dismissed him two weeks later. The employee won on appeal, but then the Oregon Supreme Court overturned the lower court’s ruling in 2010, saying, “Under Oregon’s employment discrimination laws, employer was not required to accommodate employee’s use of medical marijuana.”
In a pivotal case, Brandon Coats, a quadriplegic man who worked for Dish Network in Colorado, used cannabis to control his debilitating muscle spasms, which otherwise made him shake too much to work. He failed a random drug test, even though he was never under the influence at work, and was fired in 2010. In June 2015, the Colorado Supreme Court found that Colorado’s “Lawful Activities Statute” only applies to activities that are legal on both the state and federal level; therefore, “employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.” It was a devastating ruling in a five-year battle for Coats who remains unemployed.
What You Can Do
Become familiar with the laws in your state and how they apply to you.
You can find your state’s drug-testing laws here. Employees should also consult with an experienced attorney that specializes in employment law if they feel they are at risk of potentially losing their job should they test positive for cannabis.
With more states adopting laws legalizing the use of marijuana for medicinal (and recreational) purposes, the laws protecting your rights as an employee need to evolve. Let your state lawmakers know that they need to revise drug testing policies to reflect “intoxication” standards for marijuana metabolites, rather than imposing sweeping, general termination policies for any presence of the drug.
This article provides a brief, general introduction to the subject. It is not legal advice. For more specific information about your unique situation, please contact an employment lawyer.