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Advocates Push Workers’ Right to Cannabis Use

Advocates Push Workers' Right to Cannabis Use
Photo Gracie Malley for Cannabis Now


Advocates Push Workers’ Right to Cannabis Use

Advocates increasingly assert that cannabis legalization is not fully realized unless workers are guaranteed their right to employment, even if they partake of the herb off-hours. Some states are finally taking measures to rein in the use of urine test results as an excuse to fire or turn down job applicants.

If you use cannabis on your own time in a state where it is legal, should that be grounds for terminating your employment or rejecting your application for a job? Advocates are starting to say no, and demanding action to protest workers’ rights to use cannabis without the fear of the sack and unemployment.

Some states have already made progress in this direction. Yet California, which led the way toward opening legal space for cannabis with the Proposition 215 medical marijuana initiative in 1996, is not among them. Neither 215 nor the Prop 64 adult-use legalization initiative exactly 20 years later provided any such protections.

California Out of the Vanguard

California’s Supreme Court actually ruled on the question in 2008, finding that Prop 215 does not protect workers’ rights. The high court dismissed a suit brought by Gary Ross, an Air Force veteran who suffered from a back injury sustained during his military service. Ross sued under the state’s Fair Employment & Housing Act (FEHA), charging that he had been wrongfully denied employment by RagingWire Telecommunications after testing positive for cannabis use. The court found that 215 did not create a general right to use medical marijuana, but only protected patients from criminal prosecution.

Later that year, the State Legislature passed a law to correct this situation, making it illegal for employers to discriminate against workers in non-safety-sensitive jobs for using medical marijuana. However, it was vetoed by then-governor Arnold Schwarzenegger.

The California chapter of the National Organization for the Reform of Marijuana Laws (NORML) has launched a campaign to instate employment protections for cannabis users.

Progress in 15 States 

Fortunately, things are looking a little better elsewhere in the United States. Fifteen states have passed laws making it illegal for an employer to discriminate against either an employee or job applicant who uses medical marijuana as permitted by state law. These states are Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island and West Virginia.

In June, Nevada became the first state to actually ban pre-employment cannabis testing altogether — for workers not in public safety positions, an inevitable exception. The law was signed by Gov. Steve Sisolak and will take effect next year. 

In Maine, which voted to legalize adult-use cannabis in the same 2016 elections that California and Nevada did, employers are not allowed to discriminate based on cannabis use. This was written into the text of the Pine Tree State’s 2002 medical marijuana law. However, there are no laws that directly address drug testing. 

The New York City Council also passed a measure this April that bars employers from requiring job applicants to pass a cannabis screening test as a condition of employment. 

There is likewise a sense of the tide turning on the judicial front. After years of upholding employee firings for use of cannabis even under state medical marijuana programs, the courts are finally starting to turn around on the question. The rights of Massachusetts medical patients were upheld in state court last year, as were those of patients in Rhode Island and Connecticut.

In February of this year, another such victory was reported from Arizona — this time in the federal courts. Carol Whitmire, a former Arizona Walmart employee and card-holding medical marijuana patient who was fired after testing positive for cannabis, won a wrongful termination suit in the U.S. district court in Phoenix. 

A remedy from Capitol Hill may also be in the works. Legislation introduced in the House of Representatives this year would protect the jobs of federal employees who use cannabis in states where their use is currently legal. The Fairness in Federal Drug Testing Under State Laws Act would prohibit cannabis drug-testing “from being used as the sole factor to deny or terminate federal employment for civilian positions at executive branch agencies if the individual is in compliance with the marijuana laws in their state of residence.”

And the Golden State, which has long been at the forefront of expanding freedom for cannabis users, may soon be catching up with Nevada, its supposedly more conservative neighbor to the east. California NORML asserts: “Employment drug testing has been shown in federal studies not to improve worker safety, but it’s a great way to discriminate against cannabis consumers. We hope to sponsor a bill that will truly make marijuana legal for all adults and educate unions and employers about the needlessness of drug testing.”

TELL US, what’s your employer’s cannabis use policy? 



  1. T Winder

    September 12, 2019 at 11:59 am

    No employee should show up to work under the influence of any drug, legalized or not. If the intoxication or influence of the substance in question has the potential to undermine the safety of others it should not be permitted in the workplace.

  2. Don A. McKenzie

    September 7, 2019 at 5:54 am

    I live in Ohio, and we have a Medical Cannabis law. However, The state built into the law some flawed rules:
    1.) It allows for the discrimination of workers by drug testing! (No protection from firing!)
    2.) It discriminates against CCW Permit holders. You cannot posses a gun permit, and a drug card.
    So, this allows my Union to discriminate against me, by Union rules, that I have to take a drug test!
    All of this should be contested in court, and wiped out! No one should be harassed, discriminated against, or excluded from anything! For whatever type of medicine a patient has to take, or ingesting a legal substance, no matter what it is! All a worker should be responsible for, is being sober on the clock!

  3. Chad

    September 6, 2019 at 12:19 pm

    I have lived in two different states with legal cannabis, sadly I have not been able to partake. My employers has zero tolerance and rigorous drug testing.

    • King Kitty

      September 15, 2019 at 7:57 am

      Meanwhile, one can boast to co-workers about getting drunk on the weekend. But, should you puff, puff, pass on the weekend…

  4. Sean Nichols

    September 3, 2019 at 4:12 pm

    Here in Oklahoma, we are protected to some extent, unless your employer has labeled your job as “safety sensitive”. The problem with the safety sensitive clause is there is absolutely no evidence to uphold this issue. The canadians are smart enough to recognize that impairment only lasts a couple hours and has no effect the next day, two weeks, or three months later. Here we are not allowed to test positive, even if there has been 30 or more days from the last time you consumed. Short and sweet, you are fired. The labeling is entirely up to the employer, who can label any job as safety sensitive. Are there stairs at your workplace?….safety sensitive. Do you operate an electrical machine of any kind?….safety sensitive. Do you have shoelaces?… sensitive. Get my drift? This has to be removed from all states, not just here in Oklahoma.

  5. NASH

    September 2, 2019 at 11:44 pm

    hahahh this sounds interesting but what about those that depend on medical cannabis for good health so the wont be able to have jobs again.. hmmm

  6. bobb

    September 2, 2019 at 5:07 pm

    >> Fifteen states have passed laws making it illegal for an employer to discriminate against either an employee or job applicant who uses medical marijuana as permitted by state law. These states are Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island and West Virginia.

    Massachusetts belongs on this list as well – not be legislative statute, but through a State Supreme Court decision – they decreed that employees can’t discriminate against medMJ patients or fire them.

  7. Tim

    September 2, 2019 at 2:29 pm

    Does any know if the law would change anything for commercial drivers ?

  8. Baplo

    September 2, 2019 at 7:12 am

    Hmmmm this sounds interesting , but I do not support cannabis at work !

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