Are Workplace Cannabis Policies Lagging Behind The Times?

August 25th 2015

When Cyd Maurer, a weekend news anchor for an ABC affiliate in Eugene, Oregon, got in a minor fender-bender on her way to a shoot in May, she hardly expected to be fired. But, per company policy, Maurer, 25, was made to take a drug test immediately after the accident. Any accident on the job, no matter the severity, warrants a drug test at Eugene's KEZI station, Maurer told ATTN: recently. The problem was that Maurer had used marijuana the week before and knew at least some THC, the plant's psychoactive compound, would still be in her system, albeit dormant.

"It was a sinking feeling," Maurer said in a phone interview. "My immediate reaction was, 'I am an occasional cannabis user, do I have to take the test, or can I just quit?' But because I was contractually obligated to them, I had to take the test."

Maurer's experience, losing her job over marijuana use on her own time, shares a similar narrative to other cases in which employees have been fired for failing company drug tests, even in states where marijuana consumption has been legalized by voter referenda. In Oregon, voters passed Measure 91 legalizing recreational cannabis use in November, though the law did not officially start until July.

"I was humiliated when I was fired. I've never been fired in my entire life," Maurer, who has since devoted herself to speaking out against marijuana prohibition, told ATTN:. "[Marijuana] was the reason I was fired. It had nothing to do with my work performance or my abilities. My immediate supervisors actually really wanted me to keep my job and helped look into any sort of way that I could keep my job and tried to fight for me because they knew that I came to work completely sober every day."

Here are the states that have legalized medical (red) and/or recreational (green) marijuana:

Marijuana Legalization Mapattn.com

Bringing workplace policies up to speed with new laws.

As more states consider loosening restrictions on marijuana laws, strict workplace policies remain a barrier for those who wish to use marijuana as they would alcohol, for example, because they would be in accordance with state law but in danger of losing their job for even a minor infraction. Even in cases where marijuana has been prescribed under a strictly medical context, employees who use medical marijuana are still subject to workplace policies, whether or not the drug has any sort of bearing on workplace performance.

Colorado has been one of the only states so far to lay down a clear distinction as to which rule—state or workplace—trumps the other in cases involving legal marijuana use. In June, the state's Supreme Court ruled in a 6-0 decision that Colorado employers can still have zero-tolerance drug policies despite the state's medical marijuana laws, even if an employee uses the drug strictly off-duty. In the case, stemming from a 2010 incident, Brandon Coats, a quadriplegic who used marijuana to control leg spasms, was fired from Dish Networks for failing a random drug test. Coats argued that his termination was not in line with Colorado's laws.

Although it would seem logical that employees in states with legal marijuana—medical or recreational—would be able to use the drug when off the clock, the issue at the core of cases like Coats' gets at a distinction that remains a thorn in the side of activists and individuals involved with the cannabis industry. Colorado's high court ruled that though medical marijuana was legal under the state's Medical Marijuana Amendment, the state's Lawful Off-Duty Activities Statute, which protects employees from termination over certain off-duty activities, defers to both state and federal law, the latter of which still classifies marijuana as a Schedule 1 drug, alongside heroin and LSD. "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," one justice wrote in the opinion.

marijuanaFlickr / r0bz - flic.kr

Federal prohibition is a still a big problem.

Some states with medical marijuana laws protect employees against workplace laws, but in states such as Oregon and Colorado, legal medical and recreational laws do not affect an employer's ability to establish and enforce zero-tolerance policies. So, even with explicit directives from state legislatures, drug policy experts say that conflicting federal laws still implicitly drive many employers' decisions, with legal gray areas looming large above incidents involving accidents on the job.

According to Tamar Todd, director of marijuana law and policy at the Drug Policy Alliance, that gridlock leaves employees out in the cold.

"The initiatives and the laws [legalizing marijuana] themselves that have passed have not protected employees from drug testing from their employers," Todd told ATTN:, adding that some laws leave out such protections thanks to legislative pushback and political bargaining in the proposals process. "Since there has not been a change in federal law, it's not clear that this off-duty conduct [using marijuana] is legal at this point in time."

Zero-tolerance marijuana policies hurt companies.

But just as employees in some states risk termination for acting within the bounds of local laws, employers with zero-tolerance policies risk both losing good employees and preemptively driving away new talent. Last year, it was reported that the FBI was having a hard time hiring fresh cybersecurity talent, due in part to strict drug policies that disqualify any applicant who "used marijuana at all within the last three years," according to the agency's jobs website.

According to drug test statistics and polling, change might have to come from within the prohibition-machine to meet changing public norms. As the Atlantic reported in March, national positive drug test results rose for the first time in ten years, with positive marijuana rates in Colorado and Washington jumping over 20 percent after legalization in those states.

The way forward isn't necessarily clear, but companies faced with increasing pressure to comply with growing cultural norms in states with legal laws could see the benefits of loosening or at least rewriting corporate policies—if, for nothing else, self-interest.

"I do think that as, culturally, marijuana use changes in people's minds to be more like alcohol use rather than illicit drug use, we'll see a shift from employers themselves in what type of policies they adopt for their business or for their company," Todd said. "They're going to be hurting themselves by being unable to hire and retain the highest level employees they can."

"I think we're going to see companies wanting to change and needing to change," Todd added.

This article was published in collaboration with the Drug Policy Alliance. To learn more about these issues, visit www.drugpolicy.org.

For the more on the history of why marijuana became illegal in the first place, check out this video from ATTN:

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