It’s fair to say that the legality of marijuana in the USA has always been confusing, and even in 2018 that is still the case.
The problem is that different states have different laws, and those laws can be different as well depending on whether the cannabis is being consumed for recreational or medical reasons.
The other issue that under federal law it is still classed as a controlled substance, in the same way as stronger drugs like heroin and cocaine.
This creates a confusing patchwork picture across the United States, and unfortunately means that drug testing will still pick you up for cannabis use, and employers in states where it is locally legal are still following federal law.
So what’s the deal? Where is it legal to smoke in the USA in 2018, and how is that going to affect your life and job?
Why The Law On Cannabis Is So Confusing
The reason why cannabis use is confusing legally, is because of the arguments about whether it is damaging or beneficial, or whether there are no positive or negative effects to take into account.
While no concrete conclusion on the effects of cannabis use exists,the United States is in an almost unique position in that you have a situation where there is federal law, but also state law as well.
This creates a situation of great confusion because every single state can have different laws, and these can be different from federal law.
Unfortunately because of this almost unique situation, it creates unfairness which is almost inevitable because of this conflict.
Seone can be busted for smoking in one state, while 10 miles down the road someone else will not be.
Somebody can have a drug test and lose their freedom, or will not get a job, while literally a mile down the road somebody else won’t suffer, because of the different state laws.
It’s a crazy situation, and unfortunately it creates stigma and criminalization where none needs to exist.
On top of that, you have the problem with the fact that because federal law still completely outlaws the selling and smoking of weed, most companies follow federal law to cover their backs legally, rather than adopting state law.
Which means you have incredibly dumb situation of people being drug tested and failing to get jobs because they test positive for THC in a state where the smoking of marijuana is entirely legal. It’s crazy.
Federal Law Can Trump (Not Donald) State Law
The root of the confusion is the fact that even though it can be completely legal to smoke marijuana at state level, federal law can overrule it.
Gonzales Vs Raith (2005) is a classic example of this.
In this case, the Supreme Court ruled that even though at state level individuals are cultivating, selling and consuming cannabis completely legally, they were still violating federal marijuana laws.
This means that technically, people could still be prosecuted under the controlled substances act, even though locally they are acting completely legally.
Although things are now changing, this has led to a crazy situation where the DEA are chasing after and arresting people, even though they were completely legally consuming marijuana within the state they lived in.
The biggest change around this issue happened in 2012, when the first two states legalized cannabis use completely. The states were Nevada and Washington, effectively overturning the federal-level marijuana tax act of 1937.
However, the conflicts between state laws and federal law still continue, and will do so until the day cannabis use is decriminalized at federal level.
In What States Of The USA Is Cannabis Legal?
The definition of legal depends on the form in which cannabis is being obtained and used.
At the time of writing this, the facts around cannabis legality in the United States in 2018 are:
- Under federal law possession and consumption of cannabis is still completely illegal. It is not viewed as having any positive uses, and is therefore not viewed as medicinal.
- The medical use of cannabis is allowed, with doctors prescription, in 29 states.
- 17 other states allow the medical use of cannabis. as long as its THC content is below a certain level.
- The non-medical use of cannabis is allowed in eight states. These are Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington. This is also the case in the District of Columbia.
- In 14 states, plus the United States Virgin Islands, Cannabis has been decriminalized.
It is also interesting to note that the possession and sale of cannabis is also legal in the three largest Indian reservations. However, these are based in Nevada and Washington where it is legal anyway.
The Legal Status Of Marijuana In California
On 1 January 2018, Californians woke up in the largest legalized recreational cannabis market in the world, consisting of around 40 million people.
The legalization of cannabis for recreational use in California means that personal use is fine, and the buying and selling of it is now regulated and fully commercialized.
Californian citizens can also grow up to 6 cannabis plants in their homes for personal use, and can possess up to one ounce completely legally.
Proposition 64 was passed in 2016, which paved the way for this legalization. However, at the start of 2018 only 90 premises were licensed for the sale of regulated cannabis. In addition, the major cities of San Francisco and Los Angeles had not passed local laws allowing the sale, meaning there was no legality at the time the law came into force.
However, the 40 million residents of California may still choose the illegal cannabis market, due to the taxation that will be present on legally sold weed.
Drug Testing & Cannabis Use
As I have already said, because consumption of cannabis is still a federal offense, companies still use this as the basis for drug testing employees.
To make this worse, even in the states where cannabis use is not a crime any more, most employers still drug test and fire people if they find THC present.
What many people don’t realize is that even where laws have been passed at state level legalizing cannabis use, those laws contain clauses allowing employers exemption.
Now I’m not saying it’s right to turn up high for work, you have to consider the safety of other employees, and having respect for your employer. But at present, you could completely legally consume cannabis, be clean for days before you work, but potentially still test positive if you are drug tested.
That’s like drinking a bottle of wine and being found to be over the alcohol limit a week later. It’s nuts.
What it does is create a bizarre situation where employers don’t have to follow the law, they in effect become judge and jury. It allows them to fire you for smoking a joint in your own free time, and when you are completely free of the effects and fit for work.
Although this seems to be changing, one bizarre statistic shows that employers seem terrified of drug use being legalized, and have even exploited legalization.
My example of this is in Nevada, where cannabis use was legalized in 2012.
Survey data showed that after legalization, instances of drug testing increased, as did the firing of employees. It was almost like the employers used it as an opportunity to weed out (no pun intended) employees who were smokers, even if they were responsible and completely clean at work, covering their asses legally by citing federal law.
So Where Do Pot Laws Go In The USA From Here?
Before you get all excited about being able to smoke pot in your state of residence, you need to understand that legally it’s still a minefield, and will continue to be so for some years.
To give you an example of why this is the case, in 2015 the Colorado Supreme Court upheld an employers sacking of an employee for testing positive to cannabis use.
That employee had a medical issue and was completely legally smoking pot in his home to alleviate that issue. He was not turning up at work high, and he was not smoking close to his work shifts.
However, the Supreme Court upheld it because they ruled that the employer was right because they were following federal law rather than state law.
Similar rulings have also been upheld in Washington and California.
So as long as this ridiculous situation exists where cannabis use is illegal at the federal level, but not at state level, we will continue to see employers doing what they want by exploiting this legal loophole.
But I will close on a positive note, by saying that this is changing.
Some employers are now being more tolerant of medical marijuana use when it comes to drug testing, and I’m sure that in years to come, in states where it is completely illegal to smoke pot, a positive drug test will not be the only criteria under which an employee has their contract terminated.