Employment Status Can Limit Access to State-legal Marijuana

BY JEAN-GABRIEL FERNANDEZ

Illustration by Michael Burmesch.

U.S. Navy personnel recently received surprising news as the food giant PepsiCo released a new caffeinated drink, Rockstar Unplugged. This new drink “will cause you and your Sailors to pop-positive on drug tests,” the Navy warns. What may sound like an oddity is really a symptom of a societal dysfunction that limits access to legal marijuana to millions of people because of their employment situation.

There is now a large majority of Americans who live in states where at least some marijuana—mostly medical—is legal. There are far more than 200 million Americans who live in areas where testing positive for marijuana is not proof of illegal behavior. Only 13 states, including our very own Wisconsin, are still considering medical marijuana illegal.

A failed marijuana drug test becomes meaningless in a state where recreational marijuana is legal or if the person in question was legally entitled to access their state’s medical marijuana program. In most states, employees in the private sector exist in a gray area, as employers can choose to tolerate legal marijuana use in their employees’ free time, or they can choose to fire them for it.

NORML reports that 21 states have provisions to protect employees from employment discrimination on the basis of legal marijuana use in their free time. However, the nature of at-will employment dictates that employees are, in fact, devoid of any actual protections since employers can simply lie about the reasons justifying a lay-off.

Beyond access to the drug marijuana, be it medical or recreational, there is an entire industry dedicated to federally legal hemp. Since the 2018 Farm Bill legalized hemp, which is just another word for cannabis, only Delta-9 THC (which stands for tetrahydrocannabinol, the psychoactive component of cannabis) is banned. All strains of the plant with low Delta-9 THC content, as well as all products using other cannabis components, are legal by default.

Delta-8 THC, THC-O, CBD and other cannabinoids have been prospering throughout the nation, even in states that choose to ban marijuana, because those products have little to no Delta-9 THC. Some of these are psychoactive, others are just relaxing or anti-inflammatory, but all are legal in every state. This has led to a trend of incorporating legal cannabinoids in foods, drinks and more. PepsiCo’s new drink, Rockstar Unplugged, contains hemp seeds and herbal blends, following this trend of using cannabis as a food supplement. And this is what causes problem for millions of Americans.

FEDERAL EMPLOYEES ARE NOT ALLOWED TO PARTAKE

There is one category of the population that does not benefit from the legal marijuana market: federal employees. High-THC cannabis is still illegal at the federal level. It is a Schedule I drug, the harshest category under the Controlled Substances Act, so testing positive for it is grounds for termination or worse, among workers in the employ of the federal government.

In a notice recently published in the Federal Register, the U.S. Department of Health and Human Services clarified that this applies even if it is medical marijuana prescribed by a doctor in one of the 37 states where medical marijuana is legal. “A physician’s authorization or medical recommendation for a Schedule 1 controlled substance is not a legitimate medical explanation for a positive drug test result,” the notice reads.

That is not the worst of it yet. According to the Substance Abuse and Mental Health Services Administration (SAMHSA), “passive exposure to marijuana smoke and ingestion of food products containing marijuana are not acceptable medical explanations for a positive drug test result,” either. In other words, testing positive for marijuana for any reason, including by accident and through entirely legal, benign actions, still counts as a major offense. This is extremely stringent, given that marijuana is a unique substance when it comes to testing.

Through urine testing, most drugs are only detectable for a few days after ingestion. Someone could go on a cocaine binge, take a week off then have their urine test negative. But that same person might test positive for marijuana despite not touching any cannabis in months. THC binds itself to fat particles and remains in the body in amounts sufficient to trigger a positive drug test result for up to three months after the last ingestion. This is why Navy service members were warned to avoid the new Pepsi drink; even the potential trace amount of THC in the drink could lead to a positive urine test weeks later.

“Sailors and Marines are prohibited from using any product made or derived from hemp, including CBD, regardless of the product’s THC concentration, claimed or actual, and regardless of whether such product may lawfully be bought, sold, and used under the law applicable to civilians,” the Navy told their service members. This applies to other branches of the armed forces as well, barring potentially millions of Americans from using even federally legal and state legal CBD products.

There are roughly two million civilians employed by the U.S. government aside from military personnel targeted by this policy. None are allowed to partake in the nationwide craze for legal cannabis products, and all ar at risk of turning up a false positive in a drug test because some company incorporated a form of legal cannabis to their products.

Currently, military service members could be punished by dishonorable discharge, forfeiture of all pay, and confinement for up to five years for marijuana use. Being drunk on duty carries a much lighter punishment, with a maximum of nine months of confinement and a bad conduct discharge, which is much less severe than a dishonorable discharge. Sanctions for being drunk off-duty are even lighter, while punishment is extremely severe for service members who were high on marijuana off-duty … or, indeed, for service members who drank a hemp seed energy drink off-duty.

One effort exists to address this injustice. Rep. Anthony Brown (D-MD) authored a bill, the Restoring Equity For Offenses Related to Marijuana (REFORM) Act. It aims to align punishments for marijuana use with punishments for alcohol use. It only addresses part of the issues relating to federal oversight of marijuana use among their own workers, but progress has to start somewhere.

Jean-Gabriel Fernandez is a Milwaukee journalist with a Ph.D from the Sorbonne, France’s top university.