Workplace Cannabis Testing - Unjust or Stupid?
Updated: Oct 20, 2020
I’ve only ever had to take a drug test once. My employer decided that my urine was so valuable they flew me half way across the world to visit the lab and fill the cup. Although my other employers never followed through on their option to test, this threat continued to hang over my head as written into my employment contracts. This invasion of privacy has somehow become an accepted practice, almost expected for government jobs or for employers with government contracts. Is there any parallel to this government-enabled employer-driven invasion of privacy?
Employer restrictions on workers are often more invasive than those imposed by government.[ii] It is a great injustice that cannabis testing restricts the activities of workers even outside of the workplace. There would be an uprising if an employer forced you to implant a GPS chip or wear a camera that was always being monitored. This is essentially what happens with a cannabis drug test. Even if we were to accept the
The assumption that being under the influence of cannabis might reduce workplace performance or increase the risk of accident is dubious. [iii] Even accepting that risk, it is unjust and senseless to place such restrictions on the activities of workers outside of the workplace. There is even evidence that more frequent drug testing leads to decreased employee productivity and firm performance, as drug testing “informs how employees interact with other stakeholder groups, negatively affecting firm social performance.”[iv]
Typical duration cannabis is detectable*
Every day workers show up for their shift under-rested, stressed out, distracted, angry, depressed, in pain, hungover, highly caffeinated, or under the influence and experiencing the side effects of Over the Counter (OTC) or prescription medications. All of these mental, physical, and chemical states could negatively impact job performance and safety more than being stoned. Yet these states are not, in isolation, grounds for termination. If poor performance or risk of accident are the primary employer concern, these easily-measurable outputs should be tested directly. Reaction and coordination impairment testing or an existing performance management review processes would suffice.
Employment rights for marijuana users is a high priority for advocacy[vi], and California is making progress[vii] in reducing the ability of employers to enforce cannabis testing as a requirement for employment. Twelve states (Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Pennsylvania and Rhode Island) have made it illegal for an employer to refuse to hire or to discriminate against either a job applicant or employee who uses medical marijuana. This is not the case in our state. In practice, few non-government California workers get regularly tested during employment. However, testing is common during the recruitment and onboarding process.
Although drug testing of employees is allowed in California, it may be justified only in very limited and strictly defined circumstances[viii]. California law allows an employer to require a "suspicionless" drug test as a condition of employment after a job offer is tendered but before the employee begins working. The courts have clearly upheld testing of employees after a serious accident. The risk of testing hangs over a worker’s head and is often deterrent enough for them to forsake beneficial cannabis use.
It is ironic that the workers most likely to be tested (government employees, contactors and blue-collar workers) are some of the same populations who could benefit most from cannabis. For many repetitive and previously mastered tasks (think musicians and athletes!), cannabis can be a performance enhancing drug. This is especially true when used to reduce pain, stress, anxiety, or improve sleep.
No cannabis industry employee, from the CEO down, should be fearful to talk about how they use cannabis beneficially. You should not be in this industry if you don’t think cannabis helps. Everyone would benefit if more of us felt safe enough to “come out” about our beneficial cannabis use. For those of us who have the misfortune of working with employers who institute testing, we must work to stop them. As cannabis consumers (either current, past or future), it is our obligation to expand access for everyone who could benefit from the wellness effects of cannabis. Abolishing our unjust employment testing regimes would be a huge step in the right direction.
John is a Founder of Alento, a medicinal cannabis company based in Los Angeles. He is a NORML content contributor and committed activist for bringing the benefits of cannabis to a wider audience.
[i] CATO Institute, Free Thoughts Podcast #214, 11/17/2017 [ii] Elizabeth Anderson, “Private Government: How Employers Rule Our Lives (and Why We Don't Talk about It)” [iii] Cal NORML, “Marijuana Use and Accident Risks”. Accident studies show no relation between urine test results and accident risk. [iv] Erik Taylor and Jeremy Bernerth, “Dazed and Confused: Reconsidering the Relationship Between Drug Testing and Firm Performance”, Academy of Management Annual Meeting Proceedings 7/29/2020 [v] Cal NORML, “Drug Test Detection Times: summary for different drugs and detection technologies” [vi] Cal NORML, “Employment Rights for Marijuana Users a Priority for Cal NORML”, 11/13/2016 [vii] Jimi Devine, “AB2355 Seeks to Protect Pot Patients’ Employment”, 3/4/2020 [viii] California Chamber of Commerce, “Drug and Alcohol Testing - California Drug Testing Laws”