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Employment Discrimination Is the Next Medical Marijuana Fight

Despite dozens of states and the District of Columbia recognizing legitimate medical uses for marijuana, actually getting a prescription and using the drug is not as straightforward as it could be. Lots of hurdles remain for people using medical cannabis within the boundaries of state law. Employment discrimination is one such hurdle.

In Utah, for example, employers still have the legal right to terminate or discipline employees who test positive for THC. And Utah is not the only state. Most other states allow similar actions. But state lawmakers want to change that. Indeed, Florida may do so in the near future.

The State-Federal Dichotomy

Some would say that firing an employee who is legally using medical marijuana is a clear-cut case of workplace discrimination. But it is not so cut and dried. According to Utahmarijuana.org, a Utah organization of qualified medical professionals who assist individuals obtaining medical cannabis cards, the problem is rooted in the difference between federal and state laws.

We essentially have a dichotomy. At the federal level, marijuana is still classified as a Schedule I controlled substance. It is illegal to grow, distribute, and possess. Many industries regulated by federal law mandate regular drug testing and appropriate discipline to those who fail drug tests.

On the other hand, states like Utah and Florida legally allow medical cannabis use. This puts employers in a precarious position. Do they follow state or federal law? Do they risk action from Washington by keeping their state capitals happy, or vice-versa?

State Legislative Changes

Florida’s Agriculture Commissioner, Nikki Fried, is among those who support legislative changes in the Sunshine State. Legislators introduced a bill in 2020 to end employment discrimination against medical cannabis users, but it didn’t get very far. There is hope it might be reintroduced this year.

If not, two others have introduced a bill that would legalize recreational marijuana use in Florida. It is not likely the bill will pass the Republican-controlled legislature. But even if it did, it would not change the conflict between state and federal law. Employers would still be in the same sticky position.

 Get On The Same Page

The only real solution here is for everyone to get on the same page. Washington and the states have to agree on the status of medical marijuana before the states can reasonably address the employment discrimination issue. Otherwise, employers are left to choose sides. Not only is that not right, but it is also not practical.

Will the two sides ever find a way to meet in the middle? It’s possible. There is already talk of decriminalizing marijuana at the federal level. Assuming that happens, it is a safe bet the states would come up with employment discrimination laws fairly quickly. But if Washington continues to balk, there is little the states can do to help employees who fear for their jobs because they use medical marijuana.

Federally Regulated Employment

There is another question to deal with in relation to federal decriminalization. At issue is federally regulated employment. For example, Washington regulates interstate trucking. Even if cannabis were decriminalized, truck drivers would not be allowed to drive while under the influence. How do you test for that? It is not as easy as testing for alcohol.

Any states that do want to deal with the employment discrimination issue cannot escape the reality that medical cannabis products containing THC pose a legitimate risk to some industries. It would be irresponsible to pass any type of discrimination legislation without addressing that reality. At any rate, employment discrimination is the next medical marijuana fight. And yes, the fight is on.

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