The support for the legalization of weed has been growing spontaneously. A 1969 survey by Gallup showed that only 12% of Americans supported its legalization then.
The percentage of Americans supporting weed legalization grew to an astounding 66% by 2018. Albeit steadily, weed is certainly shifting from a fantasy to a mainstream drug just like cigarette and alcohol.
But while the laws regarding pot are changing everywhere else, most employers are yet to be moved by its liberal use and continued legalization.
It’s quite confusing that even with close to 75% of American states approving weed for medical use, millions of prescribed weed patients are still worrying whether CBD oil shows up in a drug test.
Employment Drug Screening and State Laws
Medical marijuana is currently legal in 33 states plus the District of Columbia. Of these, Illinois recently became the 11th state to give a green light on the recreational use of this mysterious plant. All the other 17 states still hold onto their guns and don’t allow weed for use in any form.
Even with the rampant legalization of weed, current employees and those seeking jobs continue to be harassed by the employers based on failed marijuana drug tests.
A major requirement when applying for jobs, applicants are often required to be tested for drug use and drug abuse. Depending on the laws of the state and company policy, you may be screened for pot before a company offers you a job.
Will I get the job if I test positive for medical marijuana use?
This largely depends on your state. At the moment, a good number of states that have approved marijuana use for medical purposes have laws that protect employees and job applicant from discrimination at the workplace. These laws protect the employees provided they don’t work under the influence of the drug and as far as they only use weed while off-duty.
Other medical weed-approved states have laws that allow the employer to deny a qualified job applicant a chance based on their weed test results. These laws also allow the employer to fire employees who are found to have the drug while off-duty.
Still, several states aren’t exact on this issue. In such states, for instance, in California, the court tends to stand with the employer (not in all cases, though).
Where does the Americans with Disabilities Act come in?
The Americans with Disabilities Act (ADA) protects Americans with any form of disability from discrimination in all areas including employment.
If you have a debilitating condition that qualifies medical marijuana use including cancer, glaucoma, and post-traumatic stress disorder (PTSD), you could rely on the ADA to argue that you are being discriminated against.
This could be partly true. But there is a glitch.
Although you may qualify as a person with a disability and, therefore, enjoy some degree of protection as far as the American with Disabilities Act is concerned, this Act does not protect you against ‘’illegal use of cannabis.’
Regardless of what the laws say in your state, the Federal government still classifies marijuana as a controlled substance. This means even when used for medical purposes, weed remains illegal under the ADA. Also, keep in mind that the ADA only covers employers with a minimum of 15 employers.
No Direct Legal Protection
Arguably, except in the 17 states that don’t allow medical or marijuana use, employers in all other states should not deny a qualified job applicant a vacancy because they tested positive for weed use. Actually, it’s perplexing why these employers say no to marijuana use even when the law says that it’s okay.
The main hypocrisy here is the lack of precise laws that protect legal users of recreational or medical cannabis at the workplace.
There are a few legal limits that apply to job applicant drug testing, though:
- Violation of state-required drug testing procedures- while most states today approve drug screening during the hiring process, they have also stipulated certain procedures and requirements that tend to make drug tests a little bit fair for the applicants. These procedures vary from state to state. But most of them require the prospective employer to indicate in the job postings that drug screening is a requirement. In addition, some states only approve weed drug testing only after the employer has extended an offer of employment that is conditioned on whether or not the applicant will pass the test.
- Invading one’s privacy- even in states that allow pre-employment drug screening, it’s illegal to invade someone’s privacy. This requirement may be violated depending on the way the employer decides to carry out the drug screening process. For instance, if it’s mandatory to collect a urine specimen in an observed environment.
Why do Employers Drug Test
In an era where over 30 states allow their residents to use marijuana to manage different health conditions, one is only left to wonder why employers continue to screen for drugs before offering employment to qualified candidates.
Actually, there are no state or federal laws that directly make it mandatory for private employers to drug test their potential employees. The only exceptions here are transportation companies and safety-sensitive industries under federal agencies including the US Coast Guard, the Federal Aviation, and the Federal Highway Administration.
Here are several key reasons why drug screening remains a key component for pre-employment for most employers:
- To minimize legal liability- in case an intoxicated employee causes injuries to others at the workplace, the employer may be held legally liable and made to make the necessary compensation for the injuries.
- To get workers’ compensation insurance discounts- annual workers’ compensation insurance is a huge cost for a company and it could run from $500 to several thousand. There are different ways through which employers may get a discount on these insurance premiums- one of them is ensuring a drug-free work environment. There’s no better way for employers to enhance this than by ensuring that they hire non-drug users.
- To ensure maximum productivity- the National Council on Alcoholism and Drug Dependence, says that 70% of those who use illegal drugs are employed. Drug abuse and addiction are said to cost American companies a whopping $81 billion annually. Another shocking revelation by the US Drug Test Center is that 80% of employed drug users support their drug use by stealing from their employers.
Rethinking Employment Requirements
The relatively increased approval of recreational and medical weed use is now forcing employers to look for new ways to adapt.
Their persistence in screening job applicants has led to a situation where there are more empty jobs than the available workforce according to official figures. Most employers actually say that they are currently not able to recruit as many employees as they wish.
As the war on drugs especially weed continues to fade- perhaps in favor of more pressing issues, employers are now considering exempting job applicants from weed test.
In Nevada, this move has actually received a legal boost by a state law that will be prohibiting employers from failing to employ job applicants on the grounds of a failed weed test.
The law which is bound to take effect come 1 January 2020 prohibits ‘‘the denial of employment because of the presence of marijuana in a screening test taken by a prospective employee…’’
Signing the bill into law on June 5, Steve Sisolak says that the aim is to ensure that all Nevadans have a share of the flourishing cannabis industry.
This law has some common-sense exceptions, though; it will not apply to firemen, motor vehicle operators, and those who are deemed by the employer to adversely affect the safety of other workers.
This law, however, adds that if an employer makes it a requirement for a potential employee to take a cannabis drug test, the new employee has a right to do a follow-up test to rebut the initial results.
It’s high time that all states that have already approved the use of weed in any form passed this law.