In the 1936 film “Reefer Madness” naive teenagers are lured into what is presented as the violent, perverted world of marijuana addiction. Before the end credits roll nearly all the main characters have either lost their freedom lost their mind or lost their life. The film is looked at today as a kind of unintentional satire; a campy send-up of and case study in over-reaction. But has the reefer madness actually ended or has it just changed shape?
The Perception Gap
These days, we are (reasonably) sure that taking a few hits off a joint won’t turn a naive high schooler into a serial killer. In fact, marijuana use in some form is now legal in more than half the states in the Union.
That said, perceptions – particularly those harbored by employers – have not necessarily kept pace with the more enlightened societal landscape. As such, people are still being subjected to drug tests for marijuana even in those states where both medical and recreational use has been legalized. The situation has caused many to ask if an employer can actually fire them for smoking weed in a state where it’s legal to do so.
It’s Now Legal to Smoke Pot, Unless You Want to Work
A lot of folks are confused about why they should still be forced to undergo testing for marijuana if it’s legal in the state where they reside. After all, the standard drug test does not look for alcohol so why should employers be sifting through pee looking for pot? Both substances are legal but it seems one is getting the short end of the stick.
The argument seems reasonable on its face but it ignores two important factors that separate marijuana from alcohol in the eyes of employers.
- Every state that has legalized the recreational use of marijuana has included workplace exemptions in their legislation. For example, on its official website Colorado states flatly that “Despite legalization, employers can still test for marijuana and make employment decisions based on drug test results.” Not much wiggle room there. But why should that be? Mostly because…
- Unlike alcohol use, which was legalized by the repeal of the 18th amendment, marijuana use remains a federal crime. And since federal law takes precedence over state law in cases where the two come into conflict, employers have opted to simply keep their testing protocols and zero tolerance policies in place unless or until there is some movement at the federal level to decriminalize marijuana.
A League of its Own
No reasonable person would conclude that someone who shared a joint with his or her friends on Friday night would still be impaired by that experience when they showed up for work on Monday morning. And yet people are still losing their jobs because they’re failing drug tests days after imbibing. The real culprit here is the fact that THC – the chemical compound in marijuana that gets you high – is detectable in urine for as many as 18 days after use.
Compared to meth, heroin, ecstasy and morphine that all typically clear the system in just 2-3 days pot is in a league of its own when it comes to how long it lingers in the system. Even crack – long considered to be among the nastiest and most dangerous of drugs – won’t hang around for more than 4 days. And no one is even testing for alcohol. Which means you can feel quite safe going on that pub crawl Sunday night. (But if you have a drug test scheduled for next week you’d better not take a hit off a joint while you’re getting drunk.)
To Pass or Not to Pass: That is the Only Question
We’re often told the aim of drug testing is to weed out (so to speak) those who may be impaired on the job. But what if the person who fails the drug test isn’t actually impaired at work, but simply still has the skid marks from a past episode etched in their urine? How can they be fired? They can be fired because the test is not actually designed to determine if you are impaired. Rather, its primary function is to determine if you’ve broken the law by using controlled substances. If you haven’t, you’re in. If you have, you’re out.
A New Hope
One case that attracted a lot of attention when it came before the Colorado Supreme Court in 2014 was that of Brandon Coats, a telephone operator and user of medical marijuana who was fired from his job because he tested positive. Coats contended he should not have been fired because he was using a legal product in a legally prescribed way and was never impaired on the job (Coats is a quadriplegic who used marijuana to help control muscle spasms). Lawyers for the employer contended that, since the federal government still lists marijuana as a Schedule I controlled substance federal law took precedence and Coats could be legally terminated for testing positive for a controlled substance.
The Empire Strikes Back
In a major setback for those hoping to overturn the practice of drug testing for marijuana the Colorado Supreme Court eventually ruled that Coats’ employer, Dish Networks, was within their rights to terminate him. It was a decision that surprised few legal scholars since the Supremacy Clause of the Constitution is quite clear that Uncle Sam has the high ground in all legal conflicts with the states.
So Where Does That Leave Us?
Stoners and occasional pot smokers alike were disappointed by the Colorado Supreme Court ruling and since that decision in 2015 there have been few serious challenges to drug testing for weed.
It seems pretty clear that until the federal government removes marijuana from its list of controlled substances drug testing for marijuana – no matter how unfair it might be based on chemistry and common sense – is to remain a fact of life. A cruel holdover from the age of “Reefer Madness”.