As cannabis legalization spreads, many may think they don’t need to be discreet about their marijuana use. But legal protections for cannabis use don’t necessarily translate to the workplace - even if you work in cannabis.
The era of working (and getting high?) from home
Over the past two years, the boundaries between work and home have blurred for countless people worldwide. At the same time, health professionals have noted increased rates of marijuana use, partly due to the COVID-19 pandemic.
A November 2020 survey by SoapBoxSample found that among 450 professionals, 46% increased their cannabis use during the pandemic. A report six months later found that employees in legal cannabis states are failing drug tests “at historically high levels.”
Employees of all types are embracing their marijuana use, be they working from home or back at the office.
But what protections do they have, and could using marijuana jeopardize their careers?
Which states have workplace protections for employees who use cannabis?
Even as legalization spreads from coast to coast, marijuana remains illegal on the federal level, further complicating the matter of employee protection.
Even in an era of marijuana legalization, most states don’t have employee protections for its use. Employers can still ban it from the workplace and drug test their employees, even in states that have legalized it.
According to an analysis from California NORML, laws in 21 states - and Washington D.C. and Puerto Rico - prohibit employers from discriminating against workers who use medical marijuana. In several other states, including Montana, Nevada, New York, New Jersey, and Connecticut, laws protect the employment rights of recreational marijuana users.
Nevada was the first state to approve policies to protect adult-use marijuana consumers. Passed in 2019, Nevada's Assembly Bill 132 bans employers from using a failed marijuana drug test as a reason to reject a job applicant. It also allows employees to dispute a positive test and take an additional one at their own expense.
Like elsewhere, the protections don’t apply to “safety-sensitive” positions like firefighters or emergency medical technicians or ones where the employer determines marijuana use is a safety risk. It also does not require employers to allow marijuana use in the workplace.
Assembly Bill 132 addresses one of the more complicated aspects of workplace drug testing. Drug tests can detect cannabis use weeks later, and a positive test does not prove the employee was getting high on the job as opposed to in their free time.
Nevada law also states that employers must “accommodate” employees who use cannabis for medical reasons if it doesn’t pose a safety risk. The law does not require employers to allow medical cannabis use in the workplace.
“Safety-Sensitive jobs” and cannabis in the workplace
According to a 2021 National Safety Council survey, around 8 out of 10 employers worry about how recreational cannabis and Delta-8 use can affect the workplace. The survey found that employers see recreational cannabis use as “slightly more likely to cause impacts in the workplace.” Only 71% said the same for medical marijuana.
The survey also found that most employers believe cannabis use could lower productivity and increase injuries and workers' compensation costs. The majority (59%) also said that recreational cannabis use is a sound reason to fire an employee.
Despite these perceptions, the survey found that less than half of the workplaces have a written policy regarding cannabis use.
The NSC supports workforce drug testing and has a policy paper on cannabis use. It states that any cannabis use is unacceptable for safety-sensitive positions. It also says that employers should move employees who use medical cannabis to other roles.
But while many states have employee protections regarding cannabis use, these also include exceptions for “safety-sensitive” roles. According to a Society for Human Resources Management (SHRM) post, “safety-sensitive” is defined by state or federal law or is determined by the employer.
In the SHRM post, Attorney Glenn Grant states that the wide variety of state marijuana laws makes it “significantly more difficult for employers to create and enforce uniform drug-testing policies that are consistent with the laws in all of the jurisdictions in which they operate."
Do cannabis companies drug test?
According to Bloomberg, legal weed combined with a tight labor market has led many companies to stop drug testing.
The Bloomberg post cites Amazon’s decision to stop testing for marijuana use in its drug screening program for positions “not regulated by the Department of Transportation.”
It’s unclear how many companies have followed suit, including in the industry you may least expect: cannabis.
There are many “safety-sensitive” jobs in the cannabis industry. These include positions that require the operation of motor vehicles or heavy machinery. And if drug testing is not always needed, drug use is typically prohibited while on the job.
Cannabiz Team CEO Liesl Bernard told the Fresh Toast, “in our experience; the cannabis industry is not much different from most other industries that prohibit drug or alcohol use during work hours.”
Take, for instance, budtenders. Working at a dispensary requires handling large cash transactions and following an extensive compliance and safety requirements list. None of this is especially conducive to being stoned.
The bottom line - it depends on where you live and what you do
Put simply, employee protections for cannabis use are complicated. They can rely on the legal status of cannabis in your state, the job you’re pursuing, and your status as a medical cannabis patient.
If you work in a safety-sensitive position or live in a state where cannabis is entirely illegal, you should not expect employment protections for cannabis use. But even in a fully-legal state, chances are your work will not allow you to consume on the job. Unless you have a medical need, your best bet is to wait until after work or until the Zoom call ends.
