Employers Pressured to Just Say OK, Drop Zero-Tolerance Marijuana Policies

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Paul Armentano, deputy director of NORML, told PJM it is time for employers to trash their zero-tolerance marijuana policies that are a byproduct of the “Just Say No” era “when drug policy was largely based on rhetoric and stigmatization.”

Armentano could see that happen sooner rather than later, no matter what Attorney General Jeff Sessions thinks about some or all of the 50 states legalizing marijuana.

“I’ve never felt that we should legalize marijuana,” Sessions said in September. “It doesn’t strike me that the country would be better if it’s being sold on every street corner. We do know that legalization results in greater use.”

However, Colorado bosses dialed back testing for marijuana use before hiring people or while employees are working. Legislation could be introduced next year to protect medicinal marijuana patients from being fired in Hawaii, and employers in states like Michigan are wondering what they’ll do if voters legalize pot smoking in November 2018.

“Just as the American public has evolved and declared that it is time to rethink our marijuana policies, it’s also time for employers to rethink the practice of drug testing for marijuana,” Armentano said.

Employers in Colorado and other states where recreational and medicinal marijuana use have been legalized are under pressure to drop cannabis testing from their drug policies.

A December 2016 Mountain States Employers Council survey of its membership showed 7 percent of those who responded said they had dropped marijuana from their pre-employment drug screening. Another 3 percent had removed pot from all drug tests.

A February Colorado State Employer Council Survey showed only 62 percent of businesses in the Rocky Mountain State even require drug tests. A 2014 Colorado State Employer Survey showed 77 percent of the companies that responded did drug testing in 2014 – the year smoking weed became legal in the state.

But that doesn’t mean Colorado employers have seen the light because of the state’s legalization of marijuana. Curtis Graves, a Mountain States Employment Council attorney, told the Denver Post it’s a question of not losing the best and brightest who choose marijuana as part of their lifestyle.

“It’s because we have low unemployment,” said Graves. “They may prefer a zero-tolerance approach. From a business perspective, they just can’t afford to be as choosy now.”

Tony Behrman, general director for human resources at Nexteer Automotive Corp. in Michigan, told a Greater Detroit Area Health Council forum that he had similar concerns.

Nexteer tests the hair of job applicants to see if they have used marijuana in the past 90 days. Behrman said as many as 20 percent of the people who apply to work at Nexteer fail the test.

Crain’s Detroit Business reported Behrman fears Nexteer’s stringent drug screening policy is steering top talent to other automotive suppliers.

“If 10 percent or 20 percent that come into an interview fail the test, that tells me there are a lot of people that didn’t even apply because of the test,” Behrman told Crain’s. “I’m growing more and more concerned how we are automatically dismissing any candidate that fails a test.”

Other employers are taking a hard line against marijuana use. And they are winning in court. Even if it is prescribed by a doctor, testing positive for marijuana use can still get an employee fired in Hawaii.

“A state law decriminalizing marijuana use does not create an affirmative requirement for employers to accommodate medical marijuana use,” wrote state District Court Judge Helen Gillmor in a lawsuit brought by an employee fired after testing positive for cannabis. The worker cited the ADA in claiming discrimination and retaliation.

Carl Bergquist, executive director of Drug Policy Forum of Hawaii, chairs a patients’ rights subcommittee that intends to offer a proposal to the Hawaii Legislature next year that would prevent people from getting fired if they using pot for pain relief or in any way prescribed by a physician.

Similar legislation was introduced in 2015. Although the final version that became law did offer protections for people in school or awaiting organ transplants from being penalized for medicinal marijuana use, the legislature erased employer provisions.

As a result, Bergquist told the Honolulu Civil Beat that state protections for people who were still employed while being treated with marijuana were “weak.”

“At the very least, we argue that the state, in order to be proactive … should also extend protections in the work environment,” Bergquist said.

But still, the reality is that even with 28 states legalizing medicinal marijuana – and eight of them plus the District of Columbia saying it’s OK to smoke pot just for the fun of it – the possession and use of weed is still a federal crime.

Danielle Urban, an attorney with Fisher Phillips in Denver, said a doctor’s prescription for marijuana does not protect an employee because that script is a violation of federal law.

Even if all 50 states legalized marijuana and Congress approved of it, too, it is still up to a business’ leadership to decide if employees will be allowed to use the drug.

“We understand that marijuana just became legal,” Urban suggested an employer could say, “but we still have a zero-tolerance policy and here’s what that means.”

Urban also told the Society for Human Resource Management that termination for marijuana might best be seen as a last resort.

Another option, Urban explained, could be sitting the employee down, and saying, “Here is a copy of our policy just in case you misunderstood how it works.”