Democratic presidential hopeful Bernie Sanders has become a superhero of sorts to the stoner nation by recently vowing to end marijuana prohibition across the United States.
Earlier this month, the Vermont senator submitted a piece of legislation to the U.S. Senate, which begs to rip the cannabis plant from the pesky clutches of Controlled Substances Act and allow the herb to be legalized all over the country for both medicinal and recreational purposes without any interference from the federal government.
And while the majority of the American workforce can clearly see the benefit to putting such a common sense plan into action (after all, the latest Gallup poll reveals support from 58 percent of the population), Bloomberg BNA columnist Susan Sagarin, who has two decades of experience in human resource management, suggests there might be some concerns among employers that a move of this magnitude could put a hefty wrench in their drug testing policies.
But what type of problems might arise with regards to drug testing in the workplace if Sanders’ bill happens to prove successful and states are then permitted to move forward with legalization efforts without any heat from Uncle Sam?
“For employers in safety-sensitive or federally-regulated workplaces, it is reasonable to assume that legalization of marijuana would have little impact on existing drug-testing requirements,” Sagarin wrote. “Private employers in general industry, however, might have to navigate murkier waters.
“Right now, with marijuana use illegal at the federal level,” she continued, “private employers generally have been able to continue with drug-testing policies that call for the termination of employees who test positive for marijuana use. In fact, even in states that have legalized recreational marijuana use, there are cases of employers successfully terminating employees for medical marijuana use.”
However, there would be a significant difference between the current model of legalization here in the U.S., where states have essentially been permitted by the federal government to write their own respective pot policies, and one where marijuana is no longer classified under the Controlled Substances Act. Without a Schedule listing, it would seem that pot would cease to be an issue in the workplace without some kind of reasonable suspicion to suggest impairment.
Yet, unlike alcohol, even when the consumption of marijuana is not recent, a worker suspected of being under the influence can easily submit a positive result.
As for now, some employers operating in legal marijuana states maintain a zero-tolerance policy on this issue. Even the Colorado Supreme Court (Coats v Dish Network) supports a company’s right to terminate an employee for using legal marijuana off the clock. But that would not likely be the case, in all legal states, if the conflict between state and federal law did not exist.
“It is reasonable to assume that Coats v. Dish Network would have been decided differently, meaning that people could not be legally fired in Colorado simply because they used marijuana in their spare time,” Jacob Sullum, senior editor at Reason, told High Times. “Even in states that do not have employment laws like Colorado’s, companies that currently test for marijuana might reconsider once it is legal under both state and federal law.”
“Employers in states where marijuana is still banned are likely to keep testing for it even after it is descheduled at the federal level,” Sullum added.
As for federally regulated workers, such as truckers and fork lift operators, Sullum speculates that these people could still be forced to submit to random drug screens for marijuana, “Although that might create a conflict with state employment law.”
Most private companies and federal agencies utilize a 5-panel drug screen to test their workers for cocaine, marijuana, PCP, amphetamines and heroin—all Schedule I and II substances.
By eliminating cannabis altogether from the Controlled Substances Act, employers should have no more concern for weed in the workplace than they do for Xanax or codeine.
“Of course the federal government and other employers have an interest in making sure workers are sober and able to perform their duties while they’re on the job,” Tom Angell with the Marijuana Majority said. “But because marijuana metabolites stay in the body for so long after use, what we have right now is a system that punishes employees for what they do on their own time when they’re not at work. Rescheduling marijuana can help get the focus back on job performance and not urine content, at least for federal employees.”
Special thanks to Jacob Sullum and Tom Angell for their input on this subject.
