As cannabis laws continue to change at bewildering speeds, the topic of employee workplace protections becomes increasingly relevant. Honestly, with how many people support legalization these days and the astronomical inflation we’ve been experiencing, it makes no sense that cannabis users should have to struggle to find decent jobs. Some states are taking action by implementing employee workplace protection to prevent unjust, adverse actions from being taken against both existing and prospective workers.
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Defining Workplace Discrimination
First, let’s take a step back and consider where discrimination (in general) stems from. Overall, discrimination is rooted in the idea of stereotypes. And stereotypes are preconceived ideas and generalizations about how people belonging to certain groups will look, act, think, and feel. Stereotypical notions essentially oversimply entire groups of people based on impersonal attributes such as race, class, gender, sexuality, age, disability status, spiritual and religious beliefs, and other characteristics… characteristics such as smoking weed (think lazy pothead stereotypes).
Workplace discrimination is somewhat self-explanatory but at the same time, the term encompasses a huge range of both intentional and unintentional behaviors, one-time incidents, and ongoing experiences. Discrimination can happen between employers and employees, and also amongst employees themselves.
Generally speaking, it’s illegal for employers to discriminate against any person based on: age, ancestry, race, disability, gender, HIV positive status, birthplace, religion, sex, or sexual orientation. Most state and federal laws define workplace discrimination broadly as, “People being treated unfairly in employment based on one or more legally protected categories, or subject to illegal harassment at work, or retaliated against for exercising their rights under workplace discrimination laws.”
Let’s zero in on “exercising their rights”, because that can vary greatly based on where a person lives… and that’s where cannabis workplace discrimination becomes of topic of discussion. In states where cannabis is legal, and especially in the case of it being used medicinally, it should be a right for people to be allowed to find gainful employment and still use whatever medicine (or recreational product) works best for them when they are not on the clock. So long as it doesn’t interfere with performance on the job.
Weed and Work… It’s Complicated
For current and potential employees, things are equally complicated. The idea of being able to be denied employment, which in turn impacts nearly every aspect of a person’s life, simply for smoking weed in their downtime (which is much better than many other substances people could be using when they’re off the clock, like alcohol), is beyond absurd and antiquated. Luckily, these practices do seem to be phasing out, and things are turning in favor of the employees.
Although it’s still federally illegal to possess or consume cannabis products, because state laws are changing at such a rapid speed, it means companies in those states are scrambling to catch up. Local and state courts have started taking the workers’ sides and defending their off-the-clock pot use, leaving employers limited in their ability to fire employees for failing drugs tests, often facing discrimination charges if they do so.
Experts do feel agree that this is hard line to tow, and that employers should have a right to implement a drug-free workplace… but since cannabis products are more often used after hours, keeping the work-place technically drug-free, it stirs up quite a conundrum for human resources departments.
“From a legal perspective, it’s fascinating,” says Lauraine Bifulco, president and CEO of Vantaggio HR Ltd., a human resources consulting firm in Orange County, Calif. “From an HR perspective, it’s, ‘Oh my gosh, could you do anything to make my life more complicated?’ Every day we turn around and find out there’s a state or city that legalizes some form of marijuana use. The challenge for HR is keeping up to speed with the current climate and what an employer can and cannot do with regard to marijuana and the workplace. It’s changing extremely fast.”
A Snapshot of Cannabis Use in the US
According to a Gallup survey published in August of this year, about 16 percent of American adults smoke weed regularly. This number is up from 12 percent when the last survey was conducted just one year ago. Not to mention, these stats are substantial increase from 2013 when the number of US cannabis smokers was initially measured, at which time it was just over 7 percent.
In total, there were about 28 million cannabis consumers in 2013, and that figure jumped to a whopping 47 million by the end of 2020. If this pattern continues, then we can expect roughly 52 million Americans will be using weed products by the end of this year.
Among younger adults (ages 19 to 30), those numbers were even higher. A recently published report with data collected between April 2021 and October 2021 found that that numbers of young adults who use cannabis (and psychedelics, for the record) is higher than ever before! Approximate 43 percent of respondents reported having used some type of weed product in the last year, 29 percent say they use it monthly, and 11 percent claiming daily use. In 2016, the number of daily users was only 8 percent.
The main takeaway here, is that cannabis use is on the upswing and it doesn’t seem like this trend will slow down anytime soon, especially as a growing number of middle-aged and older adults begin exploring the world or legal pot. And this is all the more reason that capable adults should not be denied jobs for cannabis use, because at this point, nearly half of the United States is using it at least occasionally.
States With Cannabis Workplace Protections
1. Nevada – I have to say, I’m proud of Nevada. They have certainly come a long way from the time I lived there… when I was buying weed at some of the sketchiest illegal dispensaries you could imagine, and getting denied a waitressing job at a Cheesecake Factory in Las Vegas for failing a drug test for THC. On June 5th, 2019, Governor Steve Sisolak signed into law Assembly Bill 132, which effectively prohibited employers from refusing to hire a prospective employee for testing positive for cannabis on a pre-employment drug screen.
2. New York – On March 31, 2021, the Marihuana Regulation and Taxation Act (MRTA) was signed into law, which legalized adult-use cannabis in the state of New York, and also added various protections for people who choose to participate including expungement of previous pot-related criminal charges and preventing employers from denying employment based solely on a failed drug test for THC.
3. New Jersey – Cannabis became legal for Jersey residents ages 21 and older on February 22, 2022. Along with legalizing weed, the state law included provisions that protect employees from workplace discrimination based on off-duty marijuana use.
4. Connecticut – Last summer, Connecticut became the 19th state to legalize recreational cannabis for adults. Senate bill 1201 not only requires certain former cannabis convictions to be expunged from a person’s record, but it outlines that employees should be protected from adverse action at work for using cannabis after work hours. Their laws are a bit more limited than neighboring states like New York and New Jersey, but they are looking at making some revisions soon.
5. Montana – Montana has always been one of the more progressive states when it comes to cannabis use and personal rights in general. Although cannabis has been a topic of discussion in Montana for the last 50 years, it wasn’t until 2014 that it was officially legalized, for good. In 2020, a couple more bills (Constitution Initiative 118 and Initiative I-190) were approved that aimed to establish more legitimate framework for how recreational cannabis should work in the state. I-190 makes it unlawful for employers to deny employment or fire a current employee for off-duty cannabis use.
6. Rhode Island – Following legalization, cannabis use became a protected activity in the state of Rhode Island. Employers are now very limited in the type of disciplinary action they can take against an employee who fails a drug test. The only exception to this rule is if they can prove that the employee was working while under the influence.
7. California – California is the latest to join the ranks, with Governor Newsom having signed off on Assembly Bill 2188 that offers various workplace protections for cannabis users. Despite weed having been legalized in the Golden State back in 2016, employers were still allowed to take adverse action against current and prospective employees for failed THC drug tests. Now, they have until January 1, 2024, to find a way to prove that workers are high on the job before any consequences can be dished out.
8. Other: Washington, D.C. and Puerto Rico also protect employment rights of cannabis consumers, although in Puerto Rico that only applies to medical users. Furthermore, the Supreme Court of New Hampshire ruled that medical cannabis can now be covered by the state’s disability and accommodation law, although these cases will be determined on an individual basis.
You can consider yourself lucky if you live in one of the aforementioned areas, at least, in regards to cannabis workplace protections and the ease of which you can find jobs as a stoner. As long as the person is sober during work hours, and performing their duties up to par, there is no reason why they should be barred from employment for using pot when they’re off the clock. It’s no different than having a beer or glass of wine after a long day, and since courts are beginning to side with employees on this front, we can expect more employers in more states to start following suit.
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