Pubdate: Sat, 27 Jul 2019
Source: New York Times (NY)
Copyright: 2019 The New York Times Company
Author: Dan Hyman


Smoking pot cost Kimberly Cue her job.

Ms. Cue, a 44-year-old chemical engineer from Silicon Valley, received
an offer this year from a medical device manufacturer only to have it
rescinded when the company found out that she smoked prescription
marijuana to treat post-traumatic stress disorder.

"My email was set up with the company," she said. "My business cards
were printed." But after a pre-employment drug test came back positive
for marijuana, a human resources representative told her the job was
no longer hers.

"I've lost all confidence in the process," said Ms. Cue, who
ultimately took a different job, at 20 percent less pay. "I'm so
frustrated and so irritated. I should be able to be upfront and honest
with my employer."

The relatively rapid acceptance of marijuana use in the United States
has forced lawmakers and employers to grapple with how to adapt. Last
month, Nevada passed a bill prohibiting the denial of employment based
on a positive test for marijuana. In Maine, employers may not
discriminate against people who have used cannabis, and the state has
specific rules for drug testing. And under a bill overwhelmingly
approved in April by the New York City Council and awaiting Mayor Bill
de Blasio's signature, employers would no longer be able to force job
applicants to take drug tests for marijuana use.

"If the state is saying someone can use marijuana for responsible
adult use then why should we care what someone does when they're off
work?" said Steven W. Hawkins, the executive director of the Marijuana
Policy Project, an advocacy group.

In fact, marijuana is legal in some form in 33 states and the District
of Columbia. The district and 10 states allow recreational use.
(Illinois will join the group next year; New York and New Jersey
appear to be headed in that direction.) Surveys in 2017 and this year
showed that millions of Americans used cannabis with some regularity.

Some employers have already changed their policies on pre-employment
drug screening, and not just to address the dissonance in punishing
someone for using a legal substance. With unemployment so low,
companies are finding that testing for marijuana adds an unnecessary
barrier in hiring top talent.

"With an economy that's humming along, employers are desperate," said
Jim Reidy, a lawyer with the firm Sheehan Phinney in Manchester, N.H.,
who regularly advises large corporations on drug-testing policies. "If
they have these rigid drug and alcohol policies and drug testing at
the pre-employment stage, where marijuana was still on one of the
panels, they found they were otherwise losing out on qualified

Last year, Caesars Entertainment, one of Nevada's largest casino
companies and employers, said it would no longer test candidates for
marijuana. A company press officer called such testing
"counterproductive" and acknowledged that it might be eliminating good
candidates. Cannabis is legal for recreational use in Nevada, and Las
Vegas is dotted with dispensaries.

Apple, too, has changed course. "In general, we have stopped testing
most candidates and have never done testing of current employees," the
company said. "We continue to do pre-employment drug testing for a
limited number of positions that have a safety risk."

There is also federal law to contend with. Employers with federal
contracts or those whose employees are licensed through federal
agencies are legally required to screen job candidates for drugs,
including marijuana, which remains a Schedule 1 drug in the federal
government's view. And Transportation Department rules frequently
require companies in the industry to screen for drugs when hiring for
safety-sensitive positions.

In a survey conducted in 2011, a year before Colorado and Washington
became the first states to pass ballot questions legalizing marijuana
for recreational use, the Society for Human Resource Management and
the Drug and Alcohol Testing Industry Association found that 57
percent of employers conducted drug tests on all job candidates. In
recent years, "more and more companies are dropping marijuana from
pre-employment testing," Mr. Reidy said.

But not all are doing so.

In Fresno, Calif., Nicole Perez, 32, recently applied for a
receptionist position at a trucking company only to be ruled out when
she disclosed her cannabis use.

"I don't feel like I'm doing anything wrong and have anything to
hide," said Ms. Perez, who recently moved to Eureka, Calif., in
Humboldt County, where marijuana is more widely accepted. "So I will
tell companies frankly and honestly that I will fail the test. And
that's usually when the interview ends."

Marina Dobbie of Pine Grove, Calif., has limited herself to applying
for jobs that do not test applicants for marijuana, after losing out
on a copywriter job years ago after a positive test.

"Now when I see a drug test is involved I don't even bother," Ms.
Dobbie, 55, said. "I filter myself out."

Drug-testing policies affect more prominent professions, as well.
David Irving, a former defensive end with the Dallas Cowboys,
preferred marijuana to treat his playing-related aches to the
team-prescribed painkillers.

Mr. Irving had to lie, and cheat on his urine test, for his job. "I
would rather have just been honest and straightforward with them, but
I knew that wasn't a reality," said Mr. Irving, who is 25 and an
ordained youth minister. "I was going to be the first person in my
family to make that type of money. I needed to do what I needed to do
to get into the N.F.L."

Courts have upheld the right of employers to set and enforce drug

In a 2008 medical marijuana case, the California Supreme Court ruled
that an employer could refuse to hire an applicant who tested positive
for cannabis, even if it was legally prescribed for a disability. And
in 2015, the Colorado Supreme Court ruled that Dish Network was
legally allowed to fire a quadriplegic man who used medical marijuana
at home, because the drug was still illegal under federal law.

Furthermore, most states, when they legalized marijuana use, gave
employers the explicit right to discipline an employee for violation
of a workplace drug policy or for working while under the influence.

Fiat Chrysler Automobiles in Michigan, a state that legalized
recreational use last year, tests all of its employees. "A positive
test for marijuana use will disqualify a candidate," the company told
The Detroit Free Press. When contacted by The New York Times last
month, the company added that its rules barred possession or use at

Josh Hovey, who served as communications director for the campaign to
legalize recreational marijuana in Michigan, said he had met regularly
with the state Chamber of Commerce and local businesses before the
referendum. "And a lot of what they were concerned with was their H.R.
policies," he said.

In other states, like Minnesota, where medical marijuana is legal and
19 Fortune 500 companies are based, there has not been as much
interaction between lobbyists for legal marijuana and the business

"We have not really seen large companies reach out to us about this
issue," said Leili Fatehi, campaign manager for Minnesotans for
Responsible Marijuana Regulation.

Change came quickly to the states, but on the front lines of drug
tests, there is a decided lag.

Quest Diagnostics compiles data on more than 10 million drug tests a
year. Only a small number of companies have struck marijuana from the
list of drugs they screen for, and nationally, roughly 99 percent of
all general work force drug tests include marijuana.

"For the most part it hasn't had a large effect in those
recreational-use states and no measurable effect in the medical
marijuana states," said Barry Sample, Quest's senior director for
science and technology.

There have been subtle but real differences at the state level. From
2015 to 2018, the number of companies in both Colorado and Washington
that included marijuana on their drug-testing panel dropped just under
4 percent. In Nevada's first year of legalization, marijuana testing
among employers fell more than 8 percent.

For Mr. Irving and others, each sign of a decrease in testing for
marijuana is a small victory.

Last month, the N.F.L. and its players' union announced the creation
of a committee that will study alternative methods of pain management,
including marijuana. Mr. Irving, who since leaving the N.F.L. has been
outspoken on the league's marijuana rules, sees it as much as a
humanitarian issue as a legal or even equal-rights one.

"As players we need to stand up for what's right and stick together,"
he said. "But if we all remain afraid and quiet, nothing's ever going
to change."

Correction: July 24, 2019

An earlier version of this article described incorrectly how Maine
regulates drug testing. It has specific rules governing pre-employment
drug tests; it is not the case that state law lacks such regulations.
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MAP posted-by: Matt