Tanzina Vega: Earlier this month, the California State Legislature introduced a bill that would bar employers from testing their employees for past marijuana use. For legalization advocates, this may seem like a no brainer, especially for a state in which medical and recreational marijuana is legal, but throughout the country, even in California, testing prospective employees for marijuana use in states where it's legal is a little more complicated than you might think.

Despite 15 states having legal recreational marijuana laws and 36 states with legal medical marijuana at the federal level, businesses are still deciding whether to test prospective employees for the substance.

The issue has even made its way to the White House, where just last week the Biden administration fired at least five employees for past marijuana use. This despite the fact that recreational marijuana use is legal in Washington DC. Joining me now is Mona Zhang cannabis policy reporter with Politico. Mona, thanks for joining me.

Mona Zhang: Thanks so much for having me, Tanzina.

Tanzina Vega: Let's talk about what the California bill is intended to do.

Mona Zhang: The California bill would essentially bar employers from conducting pre-employment drug tests on prospective hires. However, it does contain some exemptions, such as safety-sensitive positions, truck drivers, pilots, construction workers, anyone who uses heavy machinery, a lot of these types of laws contain exemptions to those types of industries.

Tanzina Vega: Has it gotten any pushback yet, or does it seem to make sense for folks to say, "Okay, well, for most jobs, I don't need to be tested, but for these jobs that require a certain amount of coordination, I should be tested?"

Mona Zhang: Yes. It does make sense and there's not a lot of pushback to these types of policies in more liberal states. More than a dozen states that have medical marijuana laws on the books also have some anti-discrimination laws for medical marijuana patients, and similar bills have been introduced in the past in California. I don't think it's for lack of political will or anything like that, I think these types of proposals are broadly supported. It's just a matter of whether the legislature can get to them before the end of session.

Tanzina Vega: Do we know of other states that have attempted to pass legislation like this?

Mona Zhang: Yes. States approach this issue differently. There are laws that ban pre-employment screening, pre-employment drug test for marijuana use, there are also laws that basically say, employers are not allowed to discriminate against medical marijuana patients. Two states, Maine and Vermont have similar anti-discrimination language for recreational marijuana use, but it is a complicated issue for states because they do have to exempt safety-sensitive industries, and also any industries that have to adhere to any federal safety guidelines that require them to test for marijuana use, things like pilots, and that type of job.

Those positions have to be exempted in the laws and the way the courts have handled it has been kind of a patchwork.

Tanzina Vega: Tell us a little bit about that, why has it been a patchwork?

Mona Zhang: The laws differ from state to state, and I think it really probably just comes down to the court and the judges. The first case in the US to really litigate this was a case in Colorado, where a medical marijuana patient sued his employer, the Dish Network for firing him for his lawful state-legal medical marijuana use. He had a stellar employee record, always had great reviews, and he used medical marijuana, not on the job, so he wasn't impaired on the job.

That case went all the way up to the Colorado Supreme Court who ruled against him. They ruled in favor of the employer and said that because marijuana is still illegal under federal law, his employer was allowed to do this essentially. Since then, I think state courts have started ruling more in favor of patients in these cases, especially in states where there is that anti-discrimination language in the law.

You've seen cases in Connecticut, Pennsylvania, New Jersey, Rhode Island, where people have failed pre-employment drug screenings or maybe had a drug test on the job and failed that and have won in court, the courts have said you cannot discriminate against someone for being a legal medical marijuana patient in the state.

Tanzina Vega: Mona, at the federal level, marijuana is still an illegal substance and we saw what happened at the White House recently where the Biden administration asked certain employees to disclose their past marijuana use, and some of those employees were fired. Is that because of the fact that marijuana at the federal level is illegal, despite the fact that Washington DC has recreational marijuana use laws on the books?

Mona Zhang: Yes, I think federal illegality definitely is a huge reason why this sort of thing continues to happen and different federal agencies approach the issue differently. The FBI, for example, I believe you can't have marijuana use in the past year, the NSA, it's like three years or something like that.

Generally speaking, federal agencies, including the military are loosening their restrictions on past marijuana use just because of so many states legalizing the substance and having trouble recruiting qualified candidates.

I think you see that phenomenon in employers and states as well that have legalized, where even in states that don't have any anti-discrimination laws on the books, employers are increasingly not testing employees for marijuana just because more people are using marijuana and they don't want to limit their applicant pool.

Tanzina Vega: I'm wondering also, I know that there are companies that test for a wide range of substances, so you can, in the past, before many of these laws took place, you could be tested for marijuana, cocaine, other drugs, and I'm wondering if those drug tests are still happening and they're just excluding marijuana testing from the spectrum of tests that they're offering to prospective employees?

Mona Zhang: Yes, that's absolutely still happening. A lot of people still test for marijuana though, and I think in states where they aren't firing employees for marijuana tests or refusing to hire them for marijuana test, even if a marijuana test comes back positive, they may not use that as a justification for firing them. The other types of drug tests are still happening and positive marijuana drug tests are actually on the rise because more people are consuming it in states where it's legal.

Tanzina Vega: Well, let's talk about that because there are folks, they have prescriptions for medical marijuana and then there are folks who use it recreationally. Does the law look at that differently and I guess the other question is, does the law look at marijuana use while being employed as different than marijuana use that you may have done prior to being employed?

Mona Zhang: I think, first of all, there are a lot more sort of anti-discrimination protections in state laws for medical marijuana users versus recreational marijuana users. A lot of these laws, they contain language that basically says this law doesn't prohibit employers from maintaining drug-free workplace policies.

A lot of those laws are explicit in that just because there are these anti-discrimination laws, it doesn't mean that people can show up to work impaired, right? The difficulty with these laws and for employers is that there isn't a test that can test for marijuana impairment like you have with an alcohol breathalyzer, for example.

It's hard to prove in court that an employee is impaired. You can smoke a joint two weeks ago and test positive for marijuana today. The technology is lagging on this, and there isn't a clear impairment test, and employers are still allowed to say, "Hey, you can't show up to work impaired," but how that gets sorted out in the courts without that impairment test, it's fuzzy.

Tanzina Vega: Mona, how is this affecting drug tests across the board? You just said you could smoke a joint two weeks ago, three weeks ago even, and you could still test positive, whereas other drugs might leave your system more quickly and you could still use them and maybe go undetected. It's always felt, at least to me, like sort of an uneven testing mechanism, right?

I'm wondering whether or not the issue of drug testing at all is really coming under scrutiny, in terms of whether it's used as a pre-employment tool, or whether it's used as an employment tool while people are currently employed? Employers can still say, "We do spot drug testing, or we do surprise drug testing," can't they?

Mona Zhang: Yes, they can. Also, a lot of employers-- Some of these medical marijuana cases have come out of situations where an employee had an accident at work or something which triggers an automatic drug test. I think the conversation around drug testing is so far really focused on cannabis use because there are so many states liberalizing their marijuana laws and I think as a result of the liberalization of state marijuana laws, these conversations are slowly starting to also happen for other drugs.

You've seen liberal states like Oregon, for example, that very early on allowed medical marijuana and recreational marijuana and now the conversation has shifted to just drug decriminalization as a whole.

I think as more states liberalize their marijuana laws, you're going to see the conversation shift as far as drug testing is concerned from just looking at marijuana to a broader discussion about drug use in general.

Tanzina Vega: Finally, I'm wondering if you can give us an update on what efforts at the federal level look like to make marijuana legal, because the House voted in favor of decriminalizing marijuana last December but since then, what do we know?

Mona Zhang: That's right. Senate Majority Leader Chuck Schumer has made it clear that marijuana legalization is a priority of his, which is a sharp departure from his predecessor, Mitch McConnell. I think when the MORE Act passed the House everybody knew that it didn't have a chance in a senate led by McConnell. He was never going to bring a bill like that up for a vote.

Of course, with Schumer, that has shifted. However, a bill like that is going to need 60 votes to pass in the Senate. If every single Democrat votes for the MORE Act, for example, you're still going to need to get 10 Republicans on board.

I think that folks in the marijuana industry can be overly optimistic about the chances for federal legalization. I think the chances for some piecemeal, incremental legislation are much higher. Things like the SAFE Banking Act, which would allow state-legal cannabis businesses to access banks and financial services. That has strong bipartisan support. Stuff like that definitely has a higher chance of passing.

Tanzina Vega: Mona Zhang is a cannabis policy reporter with Politico. Mona, thanks so much.

Mona Zhang: Thanks for having me.

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