Drug Policy Reformers Should Not Interfere With Employers' Choices, and Neither Should Prohibitionists

In a CNN opinion piece, Harvard economist (and Reason contributor) Jeffrey Miron suggests that one reason Proposition 19 failed is that "it overreached" by trying to "protect the 'rights' of employees who get fired or disciplined for using marijuana." In particular, the initiative included "a provision that employers could only discipline marijuana use that 'actually impairs job performance,'" which "is a much higher bar than required by current policy." That provision, notes Reason Contributing Editor Walter Olson, "would have chipped away at the basic principle of employment at will, which holds that in the absence of a contract specifying otherwise, either party to an employment relation may end that relation at any time for any reason or for no reason at all."

Miron may be right that the employment provision cost votes, since it was the California Chamber of Commerce's main complaint about Proposition 19, and some voters may have been concerned that businesses would be saddled with unproductive, unfireable stoners. Olson certainly is right that any such restrictions are objectionable on freedom-of-contract grounds. But it is worth emphasizing that Prop. 19 would not have been a license to get stoned at work, as its opponents claimed, since such behavior (like getting drunk at work) clearly affects job performance. The avowed aim of Prop. 19's backers was to put marijuana on the same footing as alcohol in this respect.

The fact that employers generally don't treat marijuana the same as alcohol is almost entirely attributable to the war on drugs, in the absence of which a policy of never hiring people who smoke pot in their spare time would make no more sense than a policy of never hiring people who drink in their spare time. (In practice, of course, employers are not really screening out all the pot smokers, but that is officially the goal of companies that require pre-employment urinalysis.) If the law treated marijuana and alcohol equally, employers generally would as well. So while I share Miron and Olson's objections to interfering with employers' choices in this area, we should keep in mind that drug prohibition is responsible for far more interference than Prop. 19 would have been. Here is how I put it in a 2002 Reason article about drug testing:

Today about half of all U.S. employers require applicants, workers, or both to demonstrate the purity of their bodily fluids by peeing into a cup on demand. For defenders of liberty, this situation arouses mixed feelings.

On the one hand, freedom of contract means that businesses should be allowed to set whatever conditions they like for employment. People who don't want to let Home Depot or Wal-Mart sample their urine can take their labor elsewhere. The fact that drug testing is widespread suggests either that applicants and employees do not mind it much or that it enhances profits enough to justify the extra cost of finding and keeping workers, along with the direct expense of conducting the tests.

On the other hand, the profit motive is clearly not the only factor driving the use of drug testing. Through mandates and exhortation, the government has conscripted and enlisted employers to enforce the drug laws, just as it has compelled them to enforce the immigration laws. In 1989 William Bennett, then director of the Office of National Drug Control Policy, cited drug testing by employers as an important element of the government's crackdown on recreational users. "Because anyone using drugs stands a very good chance of being discovered, with disqualification from employment as a possible consequence," he said, "many will decide that the price of using drugs is just too high." The Institute for a Drug-Free Workplace, a coalition that includes companies that supply drug testing services as well as their customers, echoes this line. "Employers and employees have a large stake and legitimate role to play in the 'war on drugs,'" the institute argues. "A high level of user accountability…is the key to winning the 'war on drugs.'"

Federal policies requiring or encouraging drug testing by private employers include transportation regulations, conditions attached to government contracts, and propaganda aimed at convincing companies that good corporate citizens need to take an interest in their workers' urine. From the government's perspective, it does not matter whether this urological fixation is good for a company's bottom line. And given the meagerness of the evidence that drug testing makes economic sense, it probably would be much less popular with employers if it were purely a business practice rather than a weapon of prohibition. If it weren't for the war on drugs, it seems likely that employers would treat marijuana and other currently illegal intoxicants the way they treat alcohol, which they view as a problem only when it interferes with work.