Sunday 23 February 2014

Legalization of Marijuana Efforts and Consequent Employment Challenges


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.









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