Cannabis has demonstrated medical efficacy for the treatment of a broad range of conditions. Whether the illness manifests itself in mental or physical symptoms, there is a really good chance weed can do something to make it better.
If you live in a medical state, you may have been issued a government-approved medical card and a doctor’s recommendation for cannabis as medicine. You may be doing everything right according to your state’s regulations. But that won’t stop you from getting fired if your employer finds out that cannabis is a part of your daily wellness routine, and if, in their opinion, that would interfere with your ability to do your job.
Employers should mind their own business, though. Right?
Sure, but that’s their point—your job is their business.
The notion that the constitution protects citizens’ right to privacy is not a totally accurate one. The “right to privacy” as spelled out by the fourth amendment says this:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The purpose of this amendment is to protect citizens from undue intrusion by the government. That doesn’t include the private sector. Ironically, that means that government positions are under greater scrutiny by the law to protect citizens’ privacy than private businesses.
Ultimately, it’s up to the business to determine what “privacy” means for their employees. Employers design comprehensive privacy policies that, among other things, delineate how workplace technology can be used as well as what kind of personal information (such as drug use) the employer is privy too.
Despite the law and employer policies, the issue of privacy remains exceptionally complex. For example, there is no consensus on how employers should treat information their employees post on social media. And when it comes to medicating with a state-regulated-but-federally-illegal substance, employers might feel pressured to penalize their employees for their cannabis use.
Cannabis: Recreation, Medicine, and a Reason for Termination
Some states do protect employees from termination simply for being medical patients. However, that doesn’t mean that they won’t be fired if they take a drug test and it comes back positive for THC. And if an employee is just a recreational user? There aren’t any protections there, and drug tests just compound the unfairness of living in a state with regulated cannabis but being penalized for partaking by an employer.
Drug testing is highly problematic since THC is detected in urine far after the high has worn off, so an employee could be penalized for smoking over the weekend even if they show up to work sober every day. If alcohol was the substance in question, employers wouldn’t think to terminate their employee for imbibing off hours—in fact, many employers put on events during which alcohol is one of the main attractions. The hypocrisy here should be painfully obvious. Showing up to work dysfunctionally high is one thing, but showing up to work sober after a fun weekend is an entirely different story.
Another reason this standard is inherently unjust is that it puts medical patients in an impossible situation, and developing a solution means destigmatizing the idea of going to work high. Here’s what I mean. Imagine that you were in a car accident a year ago that has resulted in chronic back pain. You were prescribed opioids, but you were wary of their addictive properties and you live in a state with medical cannabis, so you applied for a card, got one, and have been medicating with cannabis ever since. While your medicine does produce some mind-altering effects, you are still far more functional than you would be if you were in constant, serious pain or addicted to opioids. You are always punctual, professional, and efficient at the job, but if your employer found out that you were working while high, you’d be fired.
Prohibitionist policies—whether at the employer, state, or federal level—are symptomatic of the belief that most people cannot regulate themselves, and if left to their own devices, would suddenly lose all self-respect and sense of responsibility and show up to work blazed out of their minds (if they even show up at all.) Sound a little ridiculous and patronizing? That’s because it is.
Two Avenues for Change
The dissonance between state law and employer policies that penalize personal, private cannabis use is problematic for every working professional who enjoys weed. Activists are well aware of this quagmire and have taken to the most effective vehicles for long-term change: the courts and the legislature.
In Uruguay, Mexico, and Canada, the move toward national cannabis legalization gained momentum in the courts where, in both cases, the prohibition of cannabis for personal use was deemed unconstitutional.
This veteran is only one of five plaintiffs currently suing Attorney General Jeff Sessions for the unconstitutionality of the Controlled Substances Act, the law that put cannabis on the drug schedule, thereby making it illegal.
However, when it comes to employees’ rights to protection from termination for cannabis use, the courts haven’t been so understanding. So far, the courts in California, Colorado, Washington, and Oregon have stood with the employer’s rights over the employees’. That isn’t a reason to give up the fight, but it is a reason to tackle the problem from another angle.
The courts don’t make laws. They determine whether or not those laws are constitutional. State legislatures and Congress, on the other hand, do make laws. Legislation is the ultimate solution to any societal problem—that’s what laws are for. California lawmaker Rob Bonta recently introduced legislation that would protect medical marijuana patients in his state from being terminated based on their status as cannabis patients or on a drug test that came back positive for THC.
As Bonta said in a statement about the proposed law,
“To be discriminated against by your employer because of the type of medicine you use is both inhumane and wrong.”
Whether employers should have the right to fire an employee for weed is a complicated question for sure, but current laws do nothing to address the nuances of cannabis consumption.