When the law says using marijuana is OK, but the boss disagrees

Smoking pot cost Kimberly Cue her job.

Cue, a 44-year-old chemical engineer from Silicon Valley, received an offer this year from a medical device manufacturer only to have it rescinded when the company found out that she smoked prescription marijuana to treat post-traumatic stress disorder.

"My email was set up with the company," she said. "My business cards were printed." But after a preemployment drug test came back positive for marijuana, a human resources representative told her the job was no longer hers.

"I've lost all confidence in the process," said Cue, who ultimately took a different job, at 20 per cent less pay. "I'm so frustrated and so irritated. I should be able to be upfront and honest with my employer."

The relatively rapid acceptance of marijuana use in the United States has forced lawmakers and employers to grapple with how to adapt. Last month, Nevada passed a bill prohibiting the denial of employment based on a positive test for marijuana.

In Maine, employers may not discriminate against people who have used cannabis, but state law does not specifically regulate drug testing. And under a bill overwhelmingly approved in April by the New York City Council and awaiting Mayor Bill de Blasio's signature, employers would no longer be able to force job applicants to take drug tests for marijuana use.

"If the state is saying someone can use marijuana for responsible adult use then why should we care what someone does when they're off work?" said Steven Hawkins, executive director of the Marijuana Policy Project, an advocacy group.

In fact, marijuana is legal in some form in 33 states and the District of Columbia. The district and 10 states allow recreational use. (Illinois will join the group next year; New York and New Jersey appear to be headed in that direction.) Surveys in 2017 and this year showed that millions of Americans used cannabis with some regularity.

Some employers have already changed their policies on preemployment drug screening and not just to address the dissonance in punishing someone for using a legal substance. With unemployment so low, companies are finding that testing for marijuana adds an unnecessary barrier in hiring top talent.

"With an economy that's humming along, employers are desperate," said Jim Reidy, a lawyer with the firm Sheehan Phinney in Manchester, New Hampshire, who regularly advises large corporations on drug-testing policies.

"If they have these rigid drug and alcohol policies and drug testing at the preemployment stage, where marijuana was still on one of the panels, they found they were otherwise losing out on qualified candidates."

Last year, Caesars Entertainment, one of Nevada's largest casino companies and employers, said it would no longer test candidates for marijuana. A company press officer called such testing "counterproductive" and acknowledged that it might be eliminating good candidates. Cannabis is legal for recreational use in Nevada, and Las Vegas is dotted with dispensaries.

Apple, too, has changed course. "In general, we have stopped testing most candidates and have never done testing of current employees," the company said. "We continue to do preemployment drug testing for a limited number of positions that have a safety risk."

There is also federal law to contend with. Employers with federal contracts or those whose employees are licensed through federal agencies are legally required to screen job candidates for drugs, including marijuana, which remains a Schedule 1 drug in the federal government's view. And Transportation Department rules frequently require companies in the industry to screen for drugs when hiring for safety-sensitive positions.

In a survey conducted in 2011, a year before Colorado and Washington became the first states to pass ballot questions legalising marijuana for recreational use, the Society for Human Resource Management and the Drug and Alcohol Testing Industry Association found that 57 per cent of employers conducted drug tests on all job candidates. In recent years, "more and more companies are dropping marijuana from preemployment testing," Reidy said.

But not all are doing so.

In Fresno, California, Nicole Perez, 32, recently applied for a receptionist position at a trucking company only to be ruled out when she disclosed her cannabis use.

"I don't feel like I'm doing anything wrong and have anything to hide," said Perez, who recently moved to Eureka, California, in Humboldt County, where marijuana is more widely accepted. "So I will tell companies frankly and honestly that I will fail the test. And that's usually when the interview ends."

Marina Dobbie of Pine Grove, California, has limited herself to applying for jobs that do not test applicants for marijuana, after losing out on a copywriter job years ago after a positive test.

"Now when I see a drug test is involved I don't even bother," Dobbie, 55, said. "I filter myself out."

Drug-testing policies affect more prominent professions as well. David Irving, a former defensive end with the Dallas Cowboys, preferred marijuana to treat his playing-related aches to the team-prescribed painkillers.

Irving had to lie, and cheat on his urine test, for his job. "I would rather have just been honest and straightforward with them, but I knew that wasn't a reality," said Irving, who is 25 and an ordained youth minister. "I was going to be the first person in my family to make that type of money. I needed to do what I needed to do to get into the NFL."

Courts have upheld the right of employers to set and enforce drug policies.

In a 2008 medical marijuana case, the California Supreme Court ruled that an employer could refuse to hire an applicant who tested positive for cannabis, even if it was legally prescribed for a disability. And in 2015, the Colorado Supreme Court ruled that Dish Network was legally allowed to fire a quadriplegic man who used medical marijuana at home because the drug was still illegal under federal law.

Furthermore, most states, when they legalised marijuana use, gave employers the explicit right to discipline an employee for violation of a workplace drug policy or for working while under the influence.

Fiat Chrysler Automobiles in Michigan, a state that legalised recreational use last year, tests all of its employees. "A positive test for marijuana use will disqualify a candidate," the company told The Detroit Free Press. When contacted by The New York Times last month, the company added that its rules barred possession or use at work.

Josh Hovey, who served as communications director for the campaign to legalise recreational marijuana in Michigan, said he had met regularly with the state Chamber of Commerce and local businesses before the referendum. "And a lot of what they were concerned with was their HR policies," he said.

In other states, like Minnesota, where medical marijuana is legal and 19 Fortune 500 companies are based, there has not been as much interaction between lobbyists for legal marijuana and the business community.

"We have not really seen large companies reach out to us about this issue," said Leili Fatehi, campaign manager for Minnesotans for Responsible Marijuana Regulation.

Change came quickly to the states, but on the front lines of drug tests, there is a decided lag.

Quest Diagnostics compiles data on more than 10 million drug tests a year. Only a small number of companies have struck marijuana from the list of drugs they screen for, and nationally, roughly 99 per cent of all general workforce drug tests include marijuana.

"For the most part it hasn't had a large effect in those recreational-use states and no measurable effect in the medical marijuana states," said Barry Sample, Quest's senior director for science and technology.

There have been subtle but real differences at the state level. From 2015 to 2018, the number of companies in both Colorado and Washington that included marijuana on their drug-testing panel dropped just under 4 per cent. In Nevada's first year of legalisation, marijuana testing among employers fell more than 8 per cent.

For Irving and others, each sign of a decrease in testing for marijuana is a small victory.

Last month, the NFL and its players' union announced the creation of a committee that will study alternative methods of pain management, including marijuana. Irving, who since leaving the NFL has been outspoken on the league's marijuana rules, sees it as much as a humanitarian issue as a legal or even equal-rights one.

"As players we need to stand up for what's right and stick together," he said. "But if we all remain afraid and quiet, nothing's ever going to change."

Written by: Dan Hyman

Photographs by: Alex di Suvero

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