If you’ve been paying attention, you know that the legalization of marijuana, at this point, is inevitable. As more states decriminalize, legalize for medicinal purposes, and legalize for recreational purposes, it’s clear that the stigma surrounding pot is fading away. After decades of denial, Americans seem ready to admit that marijuana is not the Boogieman of gateway drugs that the D.A.R.E. Program insisted it was.
While weed is still illegal on the federal level, in December of 2014, Congress restricted the DEA from targeting medical marijuana operations that are legal under state law. Just like women’s suffrage and gay marriage, progress is inevitable; in fifty years, states and lawmakers will find themselves on either the right or wrong side of legalization history.
Folks, this is happening – whether you like it or not.
So what does this mean for employers with a zero-tolerance drug policy? Can employers take adverse action against employees or applicants based on a drug test that shows traces of a LEGAL drug?
Right now, the waters are arguably murky. In states like California where weed is both decriminalized and legalized for medical purposes on the state level, employers who maintain a zero-tolerance drug policy still have the right to terminate an employee who tests positive for marijuana. The 2013 California Supreme Court case of Ross v. Ragingwire Telecommunications held that it isn’t a violation of California law for an employee to be fired due to a positive marijuana test, even if he/she possessed a medical marijuana card and was legally authorized to smoke pot. Employers have a right, the Court found, to enforce their drug policy as they see fit.
This is great news for employers who still insist on drug testing for marijuana and are resistant to the fact that marijuana will soon have the commonplace acceptance that beer and cocktails currently enjoy. But employers stuck in the era of D.A.R.E may want to put the brakes on the celebration for the time being. There are two current lawsuits whose outcome may seriously affect the way employers must approach their drug policy: Coats v. Dish Network and Callaghan v. Darlington Fabrics.
Coats v. Dish Network was heard by the Colorado Supreme Court in September 2014, but a decision has yet to be handed down. In this case, quadriplegic employee Brandon Coats was fired by Dish Network after taking a drug test that came back positive for marijuana. Coats, who had a medical marijuana card, used marijuana to control involuntary muscle spasms due to a broken spinal cord. Despite being a top performer at his company and management being aware of his treatment, Coats was fired on the basis of a failed drug test.
While we await the outcome of this lawsuit, it should be noted that in both trial court and appellate court, the Coats v. Dish Network ruling was in favor of the employer. A Supreme Court ruling in favor of the employee will likely be a long shot. So far, this is great news for employers, right?
Enter the ACLU and the Biggest Little State in the Union.
Late last year, the ACLU of Rhode Island filed a lawsuit on behalf of University of Rhode Island grad student Christine Callaghan, who was denied a paid internship at Darlington Fabrics on the basis of a failed drug test despite possessing a medical marijuana card and disclosing the details of her condition to the company’s human resources department.
Thus, Callaghan v. Darlington Fabrics Corporation was born. What makes this case different from the others? Why may the outcome of Callaghan v. Darlington be very different from the outcome of Ross v. Ringwire? Because § 21-28.6-4 of the Rhode Island Medical Marijuana Act has a very specific non-discrimination clause regarding employers. The clause states:
No school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.
Thus far, courts in other states have argued that just because an employee or applicant possesses a medical marijuana card doesn’t mean an employer is under any obligation to make exceptions in their drug policy. Bu,t so far, there has been nothing in the laws written expressly to protect patients from this kind of discrimination. The ACLU case could be a game-changer for medical marijuana patients in Rhode Island. In addition, marijuana laws that emerge in other states may follow suit, adding similar clauses to protect those who use medical marijuana legally.
A ruling in favor of Christine Callaghan will be yet another step in the direction toward the inevitable and ultimately, something has to give. America can’t remain in the limbo of dealing with a substance that is illegal on the federal level but completely legal in some states, yet still a punishable offense in the workplace in the same states where it’s legal. And let’s face it – all states will eventually legalize as will the Feds. There is a metric shit-ton of money to be made in taxes of the legalization of pot. And after all, this is America…and money talks.
Employers hell-bent on keeping pot heads from gainful employment may want to rethink their concerns. Should an employer really care that a mail clerk in his or her office gets high at night but comes to work sober and does a great job? Is it really prudent to eliminate a portion of completely qualified job applicants because of their off-hours relaxation habits? Are a few hits of cheeba really more appalling than a few glasses of wine or Scotch before dinner? If you answered anything other than “no” to these questions, my apologies. You are likely a white, middle-aged member of the G.O.P. and your party is slowly dying a painful death. R.I.P.
Employers: you can’t stop progress, but you can consider adjusting your drug policy. You will likely hear from drug testing companies and employer rights advocates that you are completely entitled to discriminate against anyone who smokes pot. And at the moment, they may be right. But the tides are turning and whatever your feelings are on marijuana, it may be time to realistically reassess where your priorities lie.
The importance of drug testing for marijuana may be very different for an employer of airline pilots than it is for an employer of telemarketers – and that’s completely fair. But please realize that the days of pot being lumped into the same category of drugs as cocaine and meth are coming to an end, and corporate drug policies must be adjusted accordingly.