The cannabis lawyers at the firm at which I am clerking this summer are often asked — both by employers and employees, about the laws regarding employees using cannabis. The most common question is whether cannabis usage is a fireable offense. Unfortunately, the answer is that it usually is. Courts in many states have upheld an employer’s ability to test for cannabis use, and this is true even in those states where cannabis is legal.
Though some employers (like the Federal Government) have little to no choice on how to treat their employees who use cannabis, most employers that test for cannabis freely choose to do so. We think that in almost all instances, this practice should be discontinued, and for the following reasons:
- Cannabis tests are expensive. In 1999 the ACLU released a study, Drug Testing: A Bad Investment, showing that the cost of administering drug tests outweighed the cost of “lost productivity” from employees who use drugs. Drug testing is simply not a good use of company funds. This has to be even more true of cannabis.
- Drug tests are inaccurate. Drug tests can show false positives based on something an employer ate or from legal over-the-counter or prescription drugs. Lab technicians make mistakes and those mistakes can lead to inaccurate tests. Contamination in a lab can result in a false positive. Failure to follow proper procedures contributes to inconsistent results. There is no government monitoring these labs and their quality ranges from good to grossly incompetent. Do you want to subject your business to an expensive lawsuit because you chose the wrong testing lab or because the one you chose was wrong this “one” time?
- Cannabis tests work poorly. Drug tests identify metabolites in a person’s body. Metabolites from cannabis can remain in the human body for up to 30 days, but it takes a few hours for them to appear in a person’s urine. This means that a person who consumed cannabis within the last month likely will fail a cannabis test, while a person under the influence at the time of the test might pass. Cocaine, methamphetamine, and heroin stay in a person’s blood stream for only a few days. This creates a perverse incentive for employees to use heroin over cannabis because they are less likely to get caught for doing so.
- Cannabis tests drive away good people. Do you really not want to hire that amazing software coder because she consumes cannabis every once in a while on her own time? Companies that test for cannabis are weeding out (pun intended) top candidates who cannot pass their tests. They also are weeding out those who self-selectively choose not to apply because they consume or because they view drug testing as idiocy. I have no idea how many of the people at my law firm consume marijuana — or even if any do — but I do know that to a person, none of those with whom I spoke would ever submit to employer drug testing or work at a company that does that. They view them as a demeaning invasion of privacy and just plain stupid. Imagine if a company like Google started drug testing. How many employees do you think it would lose in its first month to Microsoft, Amazon or Facebook?
- Why do you even care? The best way to have productive employees is to hire productive employees and fire unproductive employees. Does it really make sense to fire a hugely productive employee because he or she uses cannabis? Does it really make sense for you as an employer to pry so deeply into your employee’s personal lives? Why do you even care?
I am not saying that employer drug testing never makes sense, but I am saying that it almost never makes sense.
Let us know your thoughts, or your experiences with drug testing in the comments below.