By Brian Liu
For proponents of legalized recreational marijuana, it seems
the fight is almost won. Though most of the momentum has swung towards
legalizing the medical use of marijuana, the movement for recreational use has
also benefitted from the generally uncontested legislation that has been raised
in several states. Twenty states and the District of Columbia now allow the
medical use of marijuana; meanwhile, Colorado and Washington permit the sale
and use of recreational marijuana. Several state Supreme Courts, including the
Michigan and Florida courts, have put measures to legalize the drug under
consideration. Yet the future looks hazy for those who choose to smoke and are
looking for employment. Despite major advances in the legalization and
proliferation of legal pot shops, employment law on the federal and state
levels have yet to catch up to the speed of advances made thus far, presenting
consistent challenges to employees on all levels in both the public and private
sectors.
The Federal
government retains of course the most stringent requirements when it comes to regulating
marijuana use. Federal employees face regular drug testing and often
zero-tolerance policies regarding marijuana. As it stands now, the level of
enforcement within the federal government itself remains left up to the individual
departments themselves; thus, some are more proactive with drug testing
measures (State, FBI, CIA) than others. Given the continued classification of
marijuana as a Schedule I Controlled Substance, and continued complacency and
un-coordinated message coming from the Administration, it seems that any change
for legalization proponents will have to look at the state level.
Slightly
more intriguing are those cases which occur in places of employment outside of
the government. Under the Drug Free Workplace Act of 1988, which is applicable
to certain private companies receiving federal funding or grants (those
receiving upwards of $100,000 in grants for example), employers are mandated to
enact a drug-free workplace policy, supporting the measure with discretionary
punishment or rehabilitation systems. Nowhere in the act itself does proactive
enforcement factor in—i.e., drug testing—yet companies have taken the fear of
losing federal contracts as a pretext for employee drug screenings and stricter
drug enforcement policy. This has presented even greater challenges for
employment, as employers intend to “make a show” for strict drug policy to
continue receiving federal grants.
(Banks, as an interesting aside to
note, as federally regulated institutions, are explicitly prohibited to conduct
transactions with medical marijuana businesses, and thus medical marijuana
business owners must maintain large sums of cash on hand, raising issues for
tax collection first and foremost, as well as the risk for money laundering or
other illicit activity.)
Outside of
such federally regulated/federal grantee companies, other employers in states
such as Colorado and Washington still maintain the discretion to fire employees
they deem to be “incapacitated” by the influenced of marijuana, regardless of
whether or not they were under the influence at the place of work. This is the
crucial area where reform, should legalization of marijuana move forward, needs
to be made. These reforms mean little if marijuana users—and particularly,
medical marijuana users—are still subject to uncertain and conflicting drug
policies that do little to secure their right to hold a job. Such policies are
damaging towards both the spirit of these reforms, and of the marijuana users
themselves, as willful firing of these medically dependent workers continues to
propagates the idea that marijuana users are complacent, unemployable, and unable
to moderate their own usage.
Oregon,
currently looking towards a sure-success ballot measure to legalize
recreational marijuana, is already investigating how to resolve this issue.
Some have advocated treating marijuana as employers already do alcohol—i.e., to
prohibit impairment at the workplace, but not necessarily prohibit impairment
at all. Others are looking into deciding which groups—particularly those
dealing with public safety—will be prohibited from marijuana use, including
police officers and firefighters. Two states have managed some level of
employee protection under their Medical Marijuana Acts. Delaware and Arizona
afford protections against hiring and firing discrimination on the basis of
“cardholder status” or as a result of a positive drug test for marijuana. Unfortunately
issues still abound, including lack of precedent, and the general sentiment has
been uncertainty. On the other hand, the latest legislation to come forward,
the “Jacki Rickert Medical Cannabis Act” out of Wisconsin, includes compliance
measures to all eight guidelines from the DOJ (the 2013 “Cole Memo”), yet still
offers little in the way of employment protections. Maine and Rhode Island offer only minimal
protection as well, whereas every other state outside of those mentioned offer
no protection at all. The contrasting levels of success between these pieces of
state legislation have room to divide even those who support a blanket measure
for legalization.
This legal
snafu raises several points to be addressed. The outstanding issue that must be
addressed in the coming months regarding employment policy is not the disparity
between state and federal law, as is commonly argued, but between state and
state law. That is, states must make an effort to reconcile their own
conflicting laws, between usage and workplace employment, to set an appropriate
standard for hiring and firing justification. Determinations of whom to
discriminate from these laws—would, for example, police officers be allowed to
use marijuana, or would caretakers or would construction site workers—as well
as determining other factors such as when are where usage is appropriate will
be the first step to resolving the employment debate. Employers must take the
charge in this, as they are given the authority in the DFWA to regulate their
own drug-policy measures within the workplace. If employers set the standards
in a clear and cogent way that expresses the possible rationale for corrective
action and termination, then that would be a fair step towards effective
marijuana policy between both the employer and the employee. In turn, this will
provide the empirical basis for further legislative revisions in the coming
years, as the exacerbating issue here has been and continues to be a lack of
precedence and workable evidence.
With these
predicaments medical and recreational marijuana proponents find themselves in,
it seems legalized marijuana seems much farther off than is popularly imagined.
Of course, as with any reform, what is important is that throughout this
experimentation in social policy—whether legalizing marijuana will be to the
detriment or benefit of society—the enforcement agents involved in these cases
(state attorney generals, prosecutors, and even human resource managers) cast a
discerning eye on which policies for prosecution are worth pursuing over
others. Enforcement is as much a part of reform as reformers themselves, as it
is with them the ultimate determination of what the law will pursue.
Works Cited
No comments:
Post a Comment