Medical Marijuana Users Need Not Apply

The California Supreme Court has agreed to consider the question of whether the state's employment law protects medical marijuana users from losing their jobs for consuming cannabis. State law says employers may not fire people for legal off-the-clock activities (which presumably would include tobacco smoking). Medical use of cannabis is permitted by state law but prohibited by federal law, under the dubious but U.S.-Supreme-Court-endorsed rationale that it somehow constitutes interstate commerce. The Riverside Press-Enterprise (registration required) reports that

Workers who have been fired or disciplined for using medicinal marijuana have filed numerous complaints with the state, claiming their employers violated California labor law, which prohibits people from being punished for performing a legal act while off duty, said Dean Fryer, spokesman for the California Department of Industrial Relations.

But the state is not processing their complaints.

"We are not accepting any claims for discrimination regarding the use of medical marijuana because federal law makes it illegal and therefore it is not lawful off-duty conduct," Fryer said, adding that the California labor code does not distinguish between state and federal law.

As with job-related drug testing generally, I have mixed feelings about this issue. To fire someone simply because he uses marijuana, whether for medicine or recreation, seems irrational to me. The woman cited in the Press-Enterprise story--who uses cannabis to treat her glaucoma and was fired because she tested positive for marijuana, despite an unblemished work record--certainly was treated shabbily. But as a general rule, I think businesses should be free to hire and fire based on whatever criteria make sense to them (within the constraints set by contracts), even if that means some of them adopt stupid, unfair policies. (They have to bear the consequences of those policies, which might include public criticism, boycotts, and a disadvantage in attracting and keeping qualified workers.) Then again, there's no question that employers would treat marijuana use differently if marijuana were (completely) legal. Generally speaking, I think, they would worry about it only when it interfered with work. To the extent that there are legitimate concerns about impairment, they are no different in principle from the concerns raised by alcohol or (a closer analogy in this case) prescription drugs.

If patients are under the influence of marijuana during the work day, it might affect their ability to perform certain tasks, just as narcotic painkillers or anti-anxiety drugs might. (With marijuana as with Vicodin, patients who take the drug for symptom relief often report that they hardly feel the psychoactive effects.) But it sounds like the main issue for California employers is marijuana's legal status. A spokesman for the California Association of Employers told the Press-Enterprise the group advises its members "they do not have to balance a duty to accommodate an applicant or employee whose drug use impairs their performance and poses a potential liability should an accident occur." But he added (in the paper's paraphrase) that "employers could consider accommodating an employee or job applicant if there are no safety issues that are involved in their work. Those accommodations could also include steering the user toward a prescription drug such as Marinol, although medical-marijuana advocates argue the synthetic pharmaceutical is not nearly as effective." In other words, FDA-approved synthetic THC is OK, but THC in the federally forbidden plant is not.

The tyranny of federal law is especially clear in the case of Riverside County, which issues medical marijuana ID cards yet refuses to hire people who carry them.

Comments

[Hambone]

Free Boo Forever!

[thoreau]

First, obviously every employer should have the right to hire or fire whoever it wants according to the employer's arbitrary policies, yadda yadda. And obviously I think that some policies are stupid and I would voluntarily refrain from patronizing businesses that have stupid policies, while specifically opposing coercive remedies and supporting your right to shop there despite my voluntary boycott. And obviously I agree with any statement of libertarian orthodoxy that I failed to include in this disclaimer, and I apologize for failing to include it. However, I assume no liability for high blood pressure that you may experience due to my omission. Void where prohibited. No purchase necessary. Must be 18 or over to play. Side effects of reading this disclaimer may include frustration.

With all of those disclaimers out of the way....

I can't really fault somebody who refuses to hire a person ingesting an illicit substance. Even if the user never brings illicit substances to work and never shows up to work in a compromised state, an illicit substance user is a Legally Certified Bad Person.

In our litigious society, if something bad happens, and the Legally Certified Bad Person had even a peripheral involvement in the incident (even something as minor as not responding quite as quickly as the plaintiff's lawyer says he should have), do you really want to have to admit to the jury that you knew this employee was a Legally Certified Bad Person?

[Dave W.]

hmmmm, what is the harm to employers if they can't fire on the basis of marijuana? Ans: a highly abstract harm that you and I agree would not harm their bottom line.

what is the harm to employees if employers are allowed to fire based on marijuana use? lots of dislocations and real hardship.

Doesn't sound like a recipe for mix'd feelings to me.

btw, I once left a job because of the drug testing they wanted to do. I wasn't taking any drugs and was not worried about the legitimate tests (although it would have been a bummer if I had been a weedsmoker). However, the employer wanted me to disclaim any liability against both my employer and its hired lab for erroneous results. Now, eventually, the employer backed down (after a couple of "deadlines" for signing had passed.) Silly me! I already had a new job before the first (fake) signing deadline even arrived. The move and jobswitch entailed much hardship. It was not good. It wasn't even particularly comforting when I found out that my ex-employer had backed down and withdrew the requirement of any testing. A cynical interpretation is that my ex-employer did not want to take on the kind of erroneous test liability they were trying to foist on me.

This is J. Sullum's mix'd feelings world. This is what it looks like. It is yucky and we can and should do better.

[Dave W.]

btw, the reason, supposedly, that my ex-employer was starting drug testing is that there were several embezzlements. One of the several embezzlements was supposedly done by a crack user, presumably to buy crack. One of the other embezzlements went to pay for medical care for an employee's child. The other embezzlement(s) were not particularly drug related.

So here is my question for Jacob:

let's say the employer wanted to go into all of our credit card and bank statements. that would have made a lot more sense. Should that be legal for them to require of employees? Or would I still have to flee to California (land of out of control employee rights)?

[x]

The opportunistic empathy of pothead libertarians for the sick who require medical marijuana is hilarious.

[Dave W.]

And obviously I think that some policies are stupid and I would voluntarily refrain from patronizing businesses that have stupid policies

No you wouldn't. You wouldn't even know about it. I mean you buy a lot of things, T. Do you really think you know the policies and practices of people who make your things?

[thoreau]

OK, you're right, there's a lot I don't know about the stuff I buy. I should rephrase the disclaimer.

Revised Disclaimer
First, obviously every employer should have the right to hire or fire whoever it wants according to the employer's arbitrary policies, yadda yadda. And obviously I think that some policies are stupid and I reserve the right to voluntarily refrain from patronizing businesses that have stupid policies, while specifically opposing coercive remedies and supporting your right to shop there despite my voluntary boycott. And obviously I agree with any statement of libertarian orthodoxy that I failed to include in this disclaimer, and I apologize for failing to include it. However, I assume no liability for high blood pressure that you may experience due to my omission. Void where prohibited. No purchase necessary. Must be 18 or over to play. Side effects of reading this disclaimer may include frustration.

[R C Dean]

x, what makes you think a libertarian's empathy for anyone who is the victim of government overreach is "opportunistic"?

Just because I don't want sick people reaching into my wallet to pay for their drugs doesn't mean I have any objection to sick people growing, or buying, their own.

[Dave W.]

Revised Disclaimer
I think that some private sector business policies are stupid, but I do not have a good way of determining what the policies are because they are confidential. I am not curious about what people term as unfair employment practices. I have never investigated in the past on this basis and it is highly unlikely that I will ever do so in the futer (J. Sullum's pipe dreamz notwithstanding). I have never boycotted a business due to unfair employment practices and it is, once again, highly unlikely that I will do so in the future. Furthermore, when proposals are suggested where a private employer's prerogatives of confidentiality are potentially compromised, I will resist such measures. Because, in that transparent world, my hypocrisy would be manifest and that is a bad outcome for this comfortable man.

[Warren]

First, obviously every employer should have the right to hire or fire whoever it wants according to the employer's arbitrary policies, blah blah blah libertycakes. Void where prohibited. No purchase necessary. Must be 18 or over to play. Reading this comment has a low risk of sexual side effects.

Couple of thought thoreau. What about people in the underground railroad that harbored fugitive slaves? Totally not the same thing, but I'm saying that breaking the law does not a bad person make. Wouldn't it a better to criticize the legal system that holds the employer liable than to apologize for his capitulation to it?

[thoreau]

Today's lesson, boys and girls, is never put a disclaimer in front of a lawyer unless another lawyer previously approved it.

[R C Dean]

do you really want to have to admit to the jury that you knew this employee was a Legally Certified Bad Person?

But you only know if you test them in the first place, thoreau. Your scenario doesn't provide a legal/economic answer to the question of why anyone is tested without cause.

I believe that, outside of a few positions (like truck drivers), there is no legal or economic justification for no-cause testing.

[thoreau]

R C-

Good point. All I meant was that if the test has been done, it is safer to not hire the medical mj user. I don't see much point to most testing, but the issue here is medical users. And a medical mj user is still a Legally Certified Bad Person. I don't have a good legal/economic answer for why testing is so widespread.

Warren-

I agree that breaking the law does not always a bad person make. I wasn't offering an apology so much as an explanation. There is a difference.

Dave W.-

In case you didn't figure it out, I don't intend my disclaimer as a detailed description of my personal views. It's just that there are certain topics (and private employment practices are among those topics) where some people like to engage in Libertarian Purity Pissing Contests. That was just a way of dispensing with the pissing contest. "OK, fine, we don't support coercion, now, moving right along..."

[thoreau]

OK, I re-read my post and I said "I can't really fault."

I guess I was offering an apology. It would be more accurate to say that "I don't like it but I can totally see why they'd do it."

I should just shut up now. Drawing fine distinctions in a thread with (at least) two lawyers in it is a dangerous game.

[Dave W.]

I know, T. But I would be a lot more comforatble if you had boycotted at some point, if for no other reason, then just to show that you are serious about creating the world Sullum envisions. Like I said, I had a royally bad drug testing experience with an ex-employer -- one that involved no drug usage and no actual testing even. I knew that nobody outside of my company would ever care. I knew that things could be 100 times worse and nobody would no or care. I think we need to be more realistic and honest about this boycotting stuf (or lack thereof) than you or Sullum are yet evincing.

Let me put it another way: Riverside County is one of the stupid villains in this post. How many people here are going to boycott Riverside County -- you know, let people (esp economically powerful business associates) know that you will not travel there and why? Answer: nobody. Not even me. There: that is how the realism and honesty 2-step works.

[Douglas Fletcher]

I'm sorry, as a legally certified bad person (LCBP) I can't participate in your libertarian purity pissing contest (LPPC).

Sounds like Washington's starting to give you acronymically infiltrated consciousness (AIC?) there, thoreau. I happen to know the only cure is to drink three beers a week at Hank Dietle's.

[madpad]

Interesting that most folks seem under the assumption that drug testing policies are adopted by companies solely by choice.

In my experience, while many companies may adopt them due to potential liabilities (theft, embezzlement, etc.) many other companies adopt them due to insurance requirements.

Now you can talk all you want about choice in the insurance marketplace, but when essentially every insurance company demands that companies in certain areas (heavy equipment, transportation, mining, etc.) institute drug testing programs or pay much higher premiums or even be denied coverage all together there's not much choice in the matter.

Are the insurance requirements backed up by solid studies indicating higher causation of accidents in recreational drug users?

Don't know. Still, most of the drug tests are damn easy to pass.

[Dave W.]

Madpad,

If the insurance companies are truly worried about theft and embezzlement, why don't they just have employers have employees sign consent forms so that the company can access an employee's financial records (bank, credit card) at will? These tools would aid embezzlement detectives much more than drug use information. I mean c'mon.

What I am trying to say is that they are lying to ya Madpad. That should be obvious.

[Pirate Jo]

Dave W, if they are lying to Madpad about testing for insurance reasons, why DO you think they are doing it?

[Warren]

Dave W,
I here ya. You make excellent points, but I don't know what you are advocating in the alternative.

[madpad]

Dave W.,

Maybe you need a drug test.

I said NOTHING about insurance companies being worried about theft or embezzlement.

I did say SOMETHING about companies - usually in certain areas involving a person's motor skills and large machines - starting drug testing policies because their insurance companies require it.

No one's 'lying to me.' I've worked in management at such companies and many insurance companies do require such policies before they'll cover you. Many others offer lower rates on liability coverage for those who institute such policies.

As for companies worried about theft or embezzlement, I used to work in mortgage banking. Most financial institutions do perform such background checks...in addition to drug tests.

Why a bank would require it is one thing.

Why an insurance company would require it for coverage is MY question as I know of no studies supporting the notion behind it...that recreational drug use leads to...anything.

[Pirate Jo]

"Why an insurance company would require it for coverage is MY question as I know of no studies supporting the notion behind it...that recreational drug use leads to...anything."

Madpad, I am with you 100%. I can understand why an employer wouldn't want a forklift driver who is drunk on the job, but that's not what these tests look for. They don't really tell you anything except whether someone has used drugs within the last several days or weeks (depending on the drug,) and that has nothing to do with whether you'd be under the influence at work.

The fraud/theft thing is the only reason I can think of. Most of the time, fraud and theft occur because someone has an expensive gambling problem, an expensive drug habit, or expensive medical bills. (Can't quote the source, but got the info. at a business seminar that addressed the subject specifically.)

Of course, if drugs were legal (and thus less expensive), they wouldn't contribute to fraud or theft any more than the price of a gallon of milk.

[Dave W.]

Warren.

I think the gov't should regulate employment relationships (sensibly, that is). There is too much coercion automatically built into an employment contract for it to be as free as oter kinds of contracting (which types are not absolutely free either, as it should be). Although I like freedom of contract, I am not a fundamentalist about it.

I think the gov't should regulate a lot of things, business things. In fact, the primary reasons I call myself a libertarian is that I think the government should get rid of ss and should cut the military budget down to merely 10X China's. Although that doesn't sound like much, I think more money is involved and these measures would have positive effects far outweighing most of the proposals we debate here.

[Dave W.]

Dave W, if they are lying to Madpad about testing for insurance reasons, why DO you think they are doing it?

Because if the insurance companies help the government then the government helps the insurance companies. If the government were interested in embezzlement, then the insurance companies sure would be asking to go thru all of our bank records (because that catches the med prob cases and the gamblor cases). But, the government cares about the scourge of drugs. So that is what insurance companies care about. Well, they care about embezzlement, too, but the rules governing insurance co. consolidation, investment and taxation are a much bigger deal to them than embezzlement compensation. So 1 hand washes . . .

[Dave W.]

As for companies worried about theft or embezzlement, I used to work in mortgage banking. Most financial institutions do perform such background checks

do any randomly test on a regular basis *after you get the job and are in a positin to embezzle?* If so, gosh. If not, then you get the rabbit with the pancake head.

[madpad]

Thanks Pirate Joe.

I can buy many arguments on the both sides of the equation, BTW.

And I can see where some would draw the conclusion that someone who engages in illegal activity - no matter how 'victimless' or innocuous - is saying something about their character.

But realistically, many assumptions made in the absence of real data turn out to be either flat untrue or a lot more complicated once genuine data is gathered and analyzed.

Without some solid data supporting the argument that recreation drug use leads to liability issues along with some quantifiable connections, then the argument is merely supposition.

If you want to base policies on supposition, so be it. When reliable data is in short supply, I suppose supposition (is that redundant?) is all you have.

[madpad]

do any randomly test on a regular basis *after you get the job and are in a positin to embezzle?* If so, gosh. If not, then you get the rabbit with the pancake head.

I don't know about all. Most that I DO know about don't but may test in the event of a 'situation.'

But what - for God's sake - does any of that have to do with a "rabbit with the pancake head?"

[Pirate Jo]

"And I can see where some would draw the conclusion that someone who engages in illegal activity - no matter how 'victimless' or innocuous - is saying something about their character."

AAAUUUGGGGHHHH!!!! (putting hands over ears) LA LA LA LA LA LA LA LA!!!

[Warren]

I think the gov't should regulate employment relationships (sensibly, that is)

Nice canoe Dave
Hey what's that roaring sound I hear?
Dave! Look out! You're about to go off...

oh that's gonna leave a mark.

[madpad]

Easy P.J.

I just said I could see where some might make that justification...not that I thought it was valid or agreed with it.

[Jimmy]

Employee Theft is a BIG Problem.

Therefore, all hiring should be contingent on the prospective employee permitting the prospective employer to search his place of residence and/or any other property held in the prospective employees name. If no stolen goods are found, they hiring process should be allowed to proceed.

[Raymond]

I am old enough to understand that the reason companies drug test, is due to the Drug-testing Industrial Complex's ace salesforce.

Selling is selling.

[crimethink]

I'm not an expert, but don't urine tests typically only pick up signs of marijuana use within the last few days? If a person applies for a job, for which they know there will be a pre-employment drug screen, and still can't "abstain" for a few days so as to pass the test...they may have a problem.

[thoreau]

crimethink-

Urine tests may only pick up recent stuff, but hair can show traces for months. I may be passing on an urban legend, but supposedly a guy in my university department had to get a drug test for a job. He shaved every hair on his body.

[Custom Nike Dunk]

thanks