Last month, the Colorado Supreme Court ruled that it was legal to fire employees who failed a drug test because they used marijuana for medical purposes, on the grounds that it was a crime under federal law even if perfectly legal under state law. This is the fifth decision over the past seven years upholding such a ruling.
For those using medical marijuana to treat serious medical conditions like intractable pain, wasting syndromes, and posttraumatic stress disorder, there is hope. The CARERS act, proposed by Sens. Rand PaulRand PaulPaul, Lee call on Trump to work with Congress on foreign policy GOP senators introducing ObamaCare replacement Monday Sanders, Dems defend ObamaCare at Michigan rally MORE (R-Ky.) and Corey Booker (D-N.J.), would legalize medical marijuana at a federal level in states where it is legal.
It’s not clear that drug testing is necessary to ensure a safe, productive workplace. After Employment Division v. Smith, it’s perfectly legal for employers to prohibit drug use at work even if drug use is part of a religious ceremony. If the Supreme Court has ruled that the free exercise clause of the First Amendment doesn’t protect employees who use drugs at work, it is certainly acceptable to fire an employee who shows up to work high.
This determination doesn’t require a drug test. If an employee is behaving in a way that would indicate they’re under the influence of some substance in a way that interferes with productivity or safety of the workplace, they can, and probably should, be sent home or fired. This is hardly a novel concept. An employer would treat an employee the exact same way if they were drunk. There’s no reason they wouldn’t adopt a similar procedure for drug use.
Moreover, there’s no reason an employer should care about an employee’s drug use. Notwithstanding any personal relationship the two parties may have, the personal conduct of an employee is no business of the employer if the employee is able to perform at work.
This is especially true in the case of marijuana. Coats, a quadriplegic, was fired for using medical marijuana, which he uses to help him sleep and treat his muscle spasms. His ability to work depended on him using marijuana.
Perhaps a corporation wants to promote virtuous behavior or “family values” among its employees. While a corporation may be within its moral, or in some cases legal, right to promote “moral” behavior in personal conduct, this should not be the role of the corporation in society.
Corporations enter into an affirmative obligation with their shareholders to act in their best interests. As put by Nobel Prize-winner Milton Friedman, “a corporation’s responsibility is to make as much money for the stockholders as possible.” If employers or shareholders want to promote good behavior, they should act in an individual capacity with the profits they’ve earned from their investments.
Drug testing also makes it harder for firms to maximize profit. The NSA and FBI are starting to reconsider testing applicants because it’s so difficult to find good hackers who don’t use marijuana or other drugs. If this means less qualified hackers are working for the government, the federal government’s drug testing policies are literally a threat to national security.
If drug use in one’s personal life doesn’t necessarily impact performance as work, there’s no reason corporations should restrict their ability to hire qualified applicants. This is especially true in the case of employees taking drugs for medical reasons.
If employers are concerned about moral behavior related to drug use, it’s usually related to potential immoral behavior that stems from drug use. If this is the case, employers may want to promote the use of marijuana over alcohol. A recent report by the RAND corporation determined that there would be tremendous societal gains if a doubling of marijuana use led to even a 10% reduction in alcohol consumption.
Some may argue that users turn to drugs as an escape from hardships like unemployment. However, these people aren’t just using marijuana. One in six unemployed Americans suffer from drug or alcohol abuse. It would be a cruel irony if someone lost their job for smoking a joint and then turned to harder drugs to cope with the loss. Even worse, imagine a user who never bothers to apply for a job they would have otherwise gotten if they didn’t know they would fail the drug test.
As long as an employee can do their job, there’s no reason to penalize them for drug use, especially for medical reasons. Even the moral arguments for drug testing fall flat. Could anyone imagine a company that would fire an employee for adultery?
Takash is a Young Voices Advocate and student at Johns Hopkins University.