Legal Use of Marijuana Clashes With Job Rules

[Egnever]

http://www.nytimes.com/2014/09/08/us/legal-use-of-marijuana-clashes-with-workplace-drug-testing.html?_r=0


Snip

Even in Colorado and Washington, the country’s most marijuana-friendly states, a glance at online classified ads lays out an unwelcome landscape for marijuana smokers. “Please do not apply if you are NOT drug free or carry a medical marijuana card,” warns one job listing for a mechanic in Denver. A Chevrolet dealership in the suburb of Aurora tells applicants, “We do screen for medical or recreational marijuana.” In Seattle, a recycling company looking for a welder cautions that they are a “zero-tolerance company including marijuana!!

”

Snip

“It wasn’t like I was getting high on the job,” Mr. Coats said. “I would smoke right before I go to bed, and that little bit would help me get through my days.”

On Sept. 30, he will take that argument before the Colorado Supreme Court in a lawsuit challenging his 2010 firing. For years, courts in Colorado and across the country have ruled against marijuana users, saying that companies have the right to create their own drug policies. But legal experts say that if Mr. Coats prevails — he lost 2-1 in an appellate ruling — his case could transform how businesses must treat marijuana users.

Snip

If Dish loses the case, the company wrote in a brief to the court, “Dish (and every other Colorado employer) can no longer maintain a drug-free policy” and companies across the state could risk losing federal contracts because they no longer complied with federal drug-free workplace laws.

An interesting article on issues faced with legalized MJ and federal law and employment. Hopefully our next president will push for federal legalization so these issues can be put to rest.

[MADem]

1. I agree that there needs to be some consonance on this issue.

Legalize it, already !

[pipoman]

2. Legalization is one issue, drug testing is another

There has to be a test for current intoxication as opposed to measuring 30 days residual.

[dreamnightwind]

8. Exactly

And for DUI, they should have to demonstrate impairment (erratic driving or inability to walk straight or perform motor skills) rather than just finding some in your blood.

Same with on-the-job, if you aren't impaired there is no problem. People can go have a drink or two at lunch and often do, cannabis should be no different.

[KittyWampus]

9. That was the major issue w/legalizing pot, as I saw it.

Currently no way to tell if person is currently stoned or has residuals.

But to say that drug use plays no factor in accidents and liability when it comes to jobs, public safety, driving is unsupportable.

[Half-Century Man]

28. Saliva Test

http://www.narcocheck.com/en/saliva-drug-tests/thc-marijuana-saliva-test.html

[KittyWampus]

43. I had no idea and appreciate the link. Thanks. It's important.

[gollygee]

14. That's what I was thinking

I agree that it shouldn't matter if a person used marijuana earlier and is not still under its effects. But how to jobs in construction, bus driving, etc., test for drug use that currently impairs people without also unfairly catching people who used it days earlier? If there isn't currently a test for that, I hope one is developed.

[ProfessorGAC]

33. I Read What Appears To Be A Synopsis of The Times Article

It came in some HR daily email thing. It specifically mentioned what you said in the article. That current testing provides no proof of current impairment, so they mentioned blood testing. Like that's better?

On edit: I get that nobody wants someone on the job high or drunk. That's logical and reasonable, especially if there is a safety element. But, "because i think he/she might be" is pretty weak legal sauce.

So, i agree with you and the article completely.

[wildbilln864]

3. k & r & thanks! n/t

[Sunlei]

4. really want President O to mandate that darn plant off the Federal drug list. Let the Rs rant.

[MohRokTah]

5. Nicotine free workers has been upheld at the federal level.

I can't see how a state can try to overturn that precedent, but you never know. I don't believe such a ruling would survive a federal challenge and judges tend to rule in ways they expect to be upheld upon appeal.

[tridim]

6. Is it legal to discriminate against people who use "legal" opiates?

What about other powerful and legal mind altering substances provided by big pharma?

Because if so, I call a big old foul right there. This is raw discrimination.

[WillowTree]

41. No more illegal than discriminating against people who use legal tobacco.

[dreamnightwind]

45. I'm not aware of the tobacco discrimination

Is it just about exposing others to the smoke, or is it about having nicotine in the bloodstream? If it is the former, no comparison to the legal opiate query. If it is not the former, I don't agree with it, why should we care if someone has nicotine in their blood?

[WillowTree]

47. At many companies, including the one I work for.......

.......smokers have to pay substantially more for their insurance. I've heard of some auto and homeowners insurers that surcharge premiums for smokers and life insurers definitely do, if they will insure smokers at all.

And yes, there are companies that make being completely tobacco free a condition of employment and, if I'm not mistaken, that has been upheld in court.

[dreamnightwind]

62. Well, that's still a long ways from blood or piss tests

to find it in your bloodstream, IMO. In a tobacco free company, I assume you can go elesewhere, smoke it, and return to work, so longas you do it on a break or lunch, is that right or am I missing something here? Personally I think designating an outside area on-premises makes the most sense.

But regardless, that's nothing compared to cannabis prohibition, where a trace aount taken from your blood or pee that may have been from as long ago as a month since you consumed it, is grounds for not hiring or dismissing someone already employed, entirely ureasonable.

[WillowTree]

63. You apparently didn't understand what I meant.......

.......when I said "completely tobacco free". Yes, there are companies where not smoking, on the premises, off the premises, on the clock or off the clock, is a condition of employment and they do test.

I'll go one farther. I know of a doctor, a dermatologist, whose staff is aware that their jobs depend on them not having a suntan or, Heaven forbid, a burn. Even a bottle tan is against the rules. Come in with a tan and.......well, might just as well not come in.

In those cases, as in the cases of places that insist on being drug free, including free of pot, one is free to decide for him or herself whether the job or the smoke/suntan is more important. Unreasonable? Perhaps. But not illegal.

[dreamnightwind]

68. That sucks

I in no way support that. Employers can reasonably expect you to perform well while on the job, anything else is just an incursion into people's lives away from their job.

I realize there are a few jobs where the employer reasonably has more of an interest in what you do off the job, but the bar for establishing the employer's need to do that should be quite high, and no pun intended.

And to my main point, the tobacco free context you speak of is, I'm sure, quite rare, and not comparable in scale to the issue with cannabis consumption away from the workplace.

[madville]

55. Yes, it is legal discrimination

You can't be on prescription Vicodin and get hired to drive a train for example.

[KittyWampus]

7. So there are no jobs where being drug free will help ensure public safety?

After accidents, employees shouldn't be tested for drug use to establish culpability?

[dreamnightwind]

10. Why?

Why not just nail them for having the accident? If they have too many accidents they are not good employees, makes no diff what is in their blood, it's the result that matters.

[hack89]

11. The cost of business insurance for one thing.

secondly, being drug free is a requirement to do business with the federal government.

[B Calm]

12. Exactly! If the employer has a bad employee that's prone to fuck up, fire them. No

need to drug test all employees and violate their right to privacy.

The Fourth Amendment says that the government cannot search everyone to find the few who might be guilty of an offense.

[KittyWampus]

15. Ah, so no toxicology report necessary for train engineer in latest train tragedy in PA?

[B Calm]

17. What part of fire him do you not understand?

[KittyWampus]

20. Ah, so no law suits. Not from passengers, certainty.

You haven't thought this through.

[B Calm]

23. A pee test doesn't prove the worker is impaired.

[KittyWampus]

24. It can widely limit potential for a company to be held liable in the case of an accident though.

And then there are the after-accident toxicology reports.

If someone was found to be impaired after an accident then the company could be held liable for not doing more to screen them out.

[KittyWampus]

13. Because the drugs may be an influencing and causitive factor, that's why.

I can't believe anyone would argue toxicology reports shouldn't be done in the case of an accident.

Here are reasons for drug testing copied/pasted:

To avoid legal liability. If an intoxicated employee harms someone on the job, the employer could be legally liable for those injuries. Workplace drug and alcohol use may also violate OSHA and state occupational safety laws.

To maintain productivity and save money. According to the federal government, drug and alcohol use takes a toll on the American workplace. Problems relating to drug and alcohol abuse cost $80 billion in lost productivity in a single year. Employees who use drugs are three times more likely to be late to work, more than three-and-a-half times more likely to be involved in a workplace accident, and five times more likely to file a workers' compensation claim.

[Pooka Fey]

18. Great post.

[B Calm]

22. Workers who are responsible for others' lives should be held to high standards,

of job performance. But a pee test will not help the employer do that because it does not detect impairment. If employers in transportation and other industries are really concerned about the public's safety, they should abandon imperfect urine testing and test performance instead. Computer assisted performance tests already exist and, in fact, have been used by NASA for years on astronauts and test pilots. These tests can actually measure hand-eye coordination and response time, do not invade people's privacy, and can improve safety far better than drug tests can.

[KittyWampus]

25. It can determine drug use… and there is a high correlation to drug use and accidents

among other things.

And as i posted earlier, in the event of an accident and subsequent toxicology reports a company could be held liable for not doing more to screen out potential drug users.

[B Calm]

27. So you are going on the premise that drug tests are reliable. But, drug screens are NOT always

reliable. These tests yield false positive results at least 10 percent, and possibly as much as 30 percent, of the time. Experts concede that the tests are unreliable.

[gollygee]

16. Insurance companies require it for some jobs

because it has such potential to cause accidents.

[TheKentuckian]

19. Everyday it seems some can't wait to agree with the authoritarian, right wing agenda

differentiated seemingly exclusively by not being given to out and open bigotry and at least a hypothetical acceptance that some level of taxation is required other than that pretty much a full acceptance of Reagan and junior Bush but even more enamored with Wall Street.

[KittyWampus]

21. what?

I just read your post several times and still can't suss out a meaning. Especially relating to this thread.

Maybe you were intending to post in another thread?

[Chan790]

26. He's accusing you (and others) of being authoritarians who argue to subvert the public's rights...

to authoritarian governmental-restraint mechanisms. (e.g. the police.)

Wasn't that hard to understand.

Edit: The insinuation is that you're a narc and a totalitarian fascist.

[Pooka Fey]

29. Authoritarianism comes in two flavors: Left Wing and Right Wing

Individuals have rights and responsibilities. Society also has rights and responsibilities.

Insisting that the individuals "right to party" supersedes the right of a society to reserve certain job categories for the non-chemically-impaired is an example of Left-Wing Authoritarianism.

So is immediately pulling out the "bigotry" word as soon as there is disagreement on a subject of discussion.

[B Calm]

30. Who's insisting the right to party? We're insisting on preserving the right to

privacy. You actually think by using a degrading and uncertain procedure that violates personal privacy, you are on the right side and we're the authoritarians.

[Pooka Fey]

31. And your opinion about society's right to reserve certain job categories for the non-impaired?

You have been all up and down the thread writing about the right for privacy. We all know what you think about piss tests. Noted and Understood.

Now I am asking you your opinion about society's right to reserve certain job categories for the non-chemically impaired.

What is your opinion?

[B Calm]

32. Why don't you share your opinion with the unmarried mother who was subjected

to an employer drug test and the employer found out she was pregnant. Knowing this woman was going to cost the company money in off time and additional employer insurance costs, they go out of their way to find reasons to fire her.

As far as your question and as I've stated before, if an employee is fucking up at his or her job, the company reserves the right to fire them.

[Pooka Fey]

34. I refuse to DIE to provide evidence of job-fuck-up for a pilot, train conductor, or surgeon

which, by your proposed procedure and under your argument, is the only reasonable method for screening out a chemically-impaired worker.

Your hypothetical argument is: "Let the train wreck happen, and after 200 people have died, Amtrak can fire the conductor, because now we have clear evidence of her chemical impairment."

Fourth Amendment
Main article: Fourth Amendment to the United States Constitution

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[71]

http://en.wikipedia.org/wiki/United_States_Bill_of_Rights

There is no absolute "right to privacy" as you state. The right which you speak of is the right to be secure against "unreasonable searches". A right which I support.

Is drug testing in certain job categories a violation of a person's right to be secure against an unreasonable search?

No, because society also has the right to be safe against the effects of impaired persons in sensitive posts. Drug testing in this instance is a REASONABLE search, because society also has rights.

Re: the pregnant woman

The absence of Universal Single Payer health care in the USA is a separate issue. Placing ballooning private health insurance costs on employers leads to many injustices. This is why I support Bernie Sanders, he is an advocate of a Single Payer plan, such as citizens of Canada and many other industrialized nations provide for their citizens.

[Comrade Grumpy]

36. Yes, the Supreme Court has carved out limited exceptions to allow for drug testing.

For safety-sensitive positions.

But it holds that drug testing is indeed a search under the Fourth.

That's why Walmart can test employees, but state governments can't test (without cause) welfare recipients.

[Pooka Fey]

39. Good post.

I do NOT support drug testing for welfare recipients, if you're wondering.

[TheKentuckian]

50. You'd have a better case if most of the people being tested weren't in nonsensitive jobs

In fact those few safety oriented jobs are a fig leaf to cover the meat of people which are doing customer service and saying welcome to Walmart.

The doctors you are so stressed about, probably not peeing into cups so much.

[WillowTree]

40. She thought maybe the her employer wasn't going to notice she was pregnant?

[B Calm]

56. whoosh...

[Comrade Grumpy]

35. Critical public safety job holders should not be impaired. I agree.

Test for impairment. Not metabolites.

People can be impaired for any number of reasons--lack of sleep, pain, emotional distress, etc.--and there are ways of measuring impairment. Drug tests, especially for marijuana, where inactive metabolites remain in the system for weeks, are not one of them.

[Pooka Fey]

38. Correct me if I'm wrong, but I think a blood test would be better than a urine test

The problems and inaccuracies with the urine tests are well known. Why not blood tests, then? Costs? We need Single Payer Universal health care to get this line item off the employer and for the government to negotiate low prices for routine lab tests, like they do in Canada and elsewhere.

Impairment can occur with other circumstances as you mention. Impairment by consuming drugs and alcohol - RX or otherwise - is guaranteed. That's an important difference.

Someone who is under the influence of a chemical (even if their last bong load was at 3 a.m. for a 9 a.m. shift, marijuana highs last several hours depending on the toker and the weed) is the last person who should decide whether or not they are impaired and whether or not they should drive a car/fly an airplane/conduct a passenger or freight train/do a surgery/etc.

I'm glad we agree that public safety job holders should not be impaired.

[Comrade Grumpy]

37. Please don't confuse the pot people with the PC crowd.

[Rex]

42. Zero tolerance for drug use at/in the workplace...except for doctor prescribed medication...imo.

There is ZERO reasons for anyone to be at work high. NONE.

[dreamnightwind]

44. Same standard for alcohol? Didin't think so...

[Rex]

48. Duh.

[dreamnightwind]

61. Except that it isn't

People commonly drink at lunch and go back to work.

[JTFrog]

49. There are a lot of prescribed medications that will get you much higher than weed.

And while I don't have a "prescription" for marijuana, I have a physician referral that allows me to purchase medical marijuana in California. I'm definitely not advocating for getting high at work, but if your requirements are that it be doctor prescribed, there are a plethora of prescribed medications that will get you higher that a kite.

[Rex]

51. Yes, because if it turned out it was legal meds...it would not mean instant termination.

The question is - you can think clearly, do your job and not be a danger to yourself?

I would not want anyone at my workplace higher then a space cadet and IF they were on Rx meds, I would give them some leeway (make sure they got home safely). IF they were doing rails in the bathroom, they would be fired on the spot. I think you understand what I mean without us playing drug vs. drug.

Also, you are thinking from the POV of someone that smokes weed all the time...someone that doesn't smoke wouldn't be able to walk after a few hits off a bong. That is really the type of person I am talking about...someone that is a danger to themselves and others because they are too high on recreational drugs.

OF COURSE booze is included...I can't believe I was asked that.

[Comrade Grumpy]

64. It seems like it's not really impairment you're concerned with.

If it were, you would not be making distinctions between "good" impaired (prescription drugs) and "bad" impaired (weed, cocaine).

Impaired is impaired, whether by substance use, lack of sleep, emotional distress, whatever.

Test for impairment, not metabolites.

[Rex]

66. It is but also if it is illegal or not. Would you want contraband in your office?

No. And if you read the entire sub-thread you would notice it is TWO things...legality and impairment.

[pipoman]

52. I agree, unless you are saying that the employer also

Gets to use tests that can't determine if the activity happened an hour ago or 2 weeks ago....then, not so much...business usually have to pay someone pretty well to take away or disallow legal activities while not actually working...

[Rex]

53. No not at all, just if someone shows up stumbling around obviously not in their right state of mind.

What people do on their off time is none of my business.

[pipoman]

54. This is the problem with testing, they can't actually tell if someone is intoxicated

Or if they used 3 weeks ago. This arrangement was fine until the activity was legalized...now it poses an interesting question...will a test come out soon that can determine how long? Or will employers have to have some side agreement with employees specifically agreeing not to use a legal product in their free time?

[Rex]

57. Let me clarify better, there is no drug testing I am against it.

It is a class warfare tool and I am opposed to it. What I am saying is in the contract agreement, if you come to work high as a kite I will fire your ass.

[pipoman]

59. If I'm managing machine operators or forklift drivers I would to..

If I'm managing artists, not so much...

[Rex]

60. LOL yeah maybe I would overlook Hollywood and some places.

Good point.

[0rganism]

46. iirc, there was a software company in recent news that required applicants...

... to fail a drug screen.

[Jesus Malverde]

58. This same logic could be used to fire anyone on pain or psych meds...nt

[bigtree]

65. we need legislation addressing these employer drug tests

...which are an invasion of privacy, an unjust assumption of guilt, and self-incrimination. For pot, it's ridiculous. Where it's legal, it's unreasonable as well as unjust.

[ellisonz]

67. This is discrimination.

There is no compelling public interest reason for this testing.