Why Are States Restricting Job Opportunities for Medical Marijuana Patients?

Editor’s note: This article is by Kate Harveston, a frequent contributor to the Kight on Cannabis blog. In it, she discusses the unjust situation in which most medical marijuana patients are restricted in the state-level jobs that they can obtain. It is a follow up to her prior article on Nevada’s employment protections for marijuana users. Kate has a passion for cannabis policy issues and I always appreciate her thoughtful articles.  -Rod Kight

INTRODUCTION

Marijuana is still stuck in the twilight zone between progressive state legislatures and an out-of-touch federal government. This discrepancy between federal and state laws also places medical marijuana patients in the workforce in an awkward position. Whether they’re actively looking for work while medicating with marijuana or wondering what will happen if their employer performs a random or scheduled drug test, patients everywhere are feeling the sting of being treated like second-class citizens.

Why Is It Hard for Medical Marijuana Patients to Find Work?

In New Mexico alone, it is likely that the state’s laws, as currently written, may be preventing as many as 79,000 medical marijuana patients from securing good-paying and stable jobs with the state. Recreational use is still illegal in New Mexico; however, the state has had a medical marijuana program since 2007.

State law currently says that employees should not be fired for participating in New Mexico’s medical marijuana program. Problematically, the same law contains language protecting employers who fire, or refuse to hire, an individual whose marijuana use might constitute a safety concern or may jeopardize the company’s federal funding (if applicable).

This is a significant oversight in an otherwise well-meaning law. But what exactly is meant by “safety concern”? And in how many cases is this actually an issue with state jobs?

Between a Rock and a Hard Place

For one medical marijuana patient and activist, Jason Barker, the search for a state-level job has proven particularly Kafkaesque. According to Barker, a substantial number of the open state positions he’s actually qualified to perform are listed as “safety sensitive” in the job listings. These include decent-paying jobs like highway work and operating medium-duty motorized construction equipment.

Barker says the only jobs he saw without the “safety sensitive” label either required higher qualifications than he possessed or were low-level positions, like janitorial work, that would actually mean a pay decrease from the contractor-based landscaping work he does now.

Barker’s search for a state-level job concluded shortly after he contacted the State Personnel Office for comment. They told him what he already knew: that marijuana patients can indeed “occupy jobs in state government,” provided those jobs aren’t of a sensitive nature where safety is concerned.

Medical Marijuana Patients Deserve Dignity (And Jobs)

If an individual has followed the steps required to qualify for a medical marijuana endorsement from a qualified doctor, there’s a good chance it’s because other medicines have not worked well. Medical marijuana is not a panacea or cure-all, and much more research is required; however, the evidence for its usefulness for a number of medical conditions is already compelling.

There is a growing body of research that points to potentially abundant medical applications for marijuana. Some of these applications include:

• Controlling and minimizing seizures and tremors
• Managing all but the most serious chronic pain, including nerve pain
• Treating nausea and/or weight loss
• Helping cancer patients manage symptoms
• Reducing the effect of wasting diseases like HIV as well as other diseases such as IBS and Crohn’s

Apocryphal tales from exuberant patients sometimes even claim marijuana helped them eliminate cancer altogether. Such claims require and deserve more organized scientific inquiry.

My point is that medical marijuana can improve lives. In many cases, it even help those with terrible diseases to live with dignity. Millions of Americans suffer from chronic pain every year, meaning there are millions of potential patients who could live happier and more productive lives if they had fewer roadblocks standing in their way.

By any measure, it seems cruel to keep medical marijuana patients from receiving the medicine they need to live balanced, productive lives. In fact, Article 23 of the United Nations’ Universal Declaration of Human Rights provides that, “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.”

This is part of the reason why, starting in 2020, it will be illegal in Nevada for employers to deny employment or fire a worker solely for testing positive for marijuana use. Nevada has both a medical and recreational marijuana market.

Nevada has deftly cut through the “safety sensitive” portion of the debate by recognizing two things:

• Testing an employee for THC is not necessarily accurate nor a good indication of their “impairment.”
• The research does not yet demonstrate that everyone who uses marijuana demonstrates the same level of impairment.

CONCLUSION

As with several other medical matters, this seems an issue best left for people to discuss with their physicians. Reasonable people can differ on whether there should be different standards for recreational marijuana users in the workplace than with medical marijuana patients, especially where safety is concerned. But it is high time for states with medical marijuana programs to recognize that, if an employee is otherwise cleared for duty by a doctor, it’s morally problematic to turn that person away solely because that person is using physician-recommended marijuana.

January 5, 2019

This is a guest post by Kate Harveston, a frequent contributor to the Kight on Cannabis legal blog. Kate is a freelance health and wellness writer and cannabis advocate. You can read more of Kate’s writing on cannabis issues by clicking here, here, here, and here. You can also visit her personal blog, So Well, So Woman!

Rod Kight is an international cannabis and hemp attorney. He speaks at cannabis conferences across the country, drafts and presents cannabis legislation to foreign governments, is regularly quoted on cannabis matters in the media, and maintains the Kight on Cannabis legal blog, where he discusses legal issues affecting the cannabis industry. You can contact him here.