As marijuana became legal in California, many employees started to worry about drug tests at their workplace. Excited by their new legal right of recreation many employees can get into trouble. More precisely, they can lose their job. As much as it is legal for them to smoke pot, it is no less legal for employers to fire them on such grounds.
Voters in California approved Proposition 64 by a healthy margin on Nov. 8. And for Californians it meant the following. People are allowed to consume cannabis on private property, carry up to an ounce with them or to have up to six plants at home.
But that’s not all that the proposition says. It mentions that employers still can perform drug tests before hiring candidates or at any point during their careers. You can imagine how many drug test are going to end up positive? So, what should companies do then? The law says they can fire them, even if there is no proof they were under influence during the job.
A paradox or not?
All of this is somewhat paradoxical. How can one be fired for something that is legal now? But if we think of it, most of the employment in U.S is at will. Meaning that employers can hire and fire people for any reasons with few exceptions. Smoking cigarettes or alcoholism might as well be reasons for not hiring someone. There is a kind of double standard emerging regarding marijuana use. But when you realize that alcohol is as well legal, but can still be a reason for termination, it starts to make sense.
California has tried to pass the same law earlier in 2010. The Proposition 19 of that year had a point which prohibited employers from penalizing workers unless their performances suffered. Some think, that that was exactly why the Preposition failed.
What science has to say about drug tests?
The issue gets more tricky considering how unreliable drug tests can be. The drug has a unique way of affecting the body, which current tests might fail to reveal comprehensively.
While alcohol can be filtered out of the body in less than a day, drug tests can reveal sings of cannabis use long after its effects have stopped. So, companies will have a tough time finding out if their worker was stoned on duty or used the drug long ago.
Cannabis is stored in fat cells, which means there are many factors at play when it comes to metabolizing the drug. Person’s tolerance, the way of injection or drug’s potency all count.
So what, eventually?
California companies are now reconsidering their policies regarding drugs tests. Employers think of updating their rules in the face of Prop. 64. It’s still early to come up with a full picture, however, some Los-Angeles companies thing of stopping the drug tests at all.
Some companies might choose to follow strict drug-free rules may limit their choice of potential employees. While ones who’ll choose the opposite can are at risk of acquiring a reputation for being “stoner-friendly.”
Some companies might choose to test employees whose work is concerned with heavy machinery. While other companies might decide only to perform the test if they suspect someone is high at work.
There is no definite answer what policies most of the companies are going to get. Some companies might afford themselves to strengthen their laws in the “drug-friendly” climate. While others won’t be able to fill their workplaces because of strict rules.
Legal issues that can be caused by drug testing
If carried out wrongly drug tests can lead to a number of legal issues including wrongful termination and employment discrimination. Here are the most common types.
Employment discrimination: If an employee belongs to a certain group based on race, age, gender, religion, or disability, then he/she could be susceptible to discrimination. If employers are selective in the ways they carry out drug tests, then it could be a problem.
Privacy invasion: California is one of the few states where a state Constitution mentions a right to privacy. That isn’t only relevant for government employees but also people working in private industry. This right relates to the issue of drug testing as well. However, that doesn’t mean that drug testing is illegal. Individual tests are evaluated differently. When a case arises, an employer’s reasons for testing are measured against the intrusion of privacy of an employee.
Defamation: A defamation claim might arise when an employer publicizes that the employee tested positive if the employer is aware that the test might not be completely accurate. An employee might apply for a retest that might show that the first one was false positive. Then the employer will be responsible for revealing test results to people who shouldn’t have known.
The recent legalization of marijuana will more and more change its relationship with workplace policies. While companies already update their drug test rules, many other changes might soon be on the way.