Most Americans Don’t Think Employees Should Be Fired For Off-the-Job Pot Use


Americans' support for legalizing cannabis is growing rapidly. So, too, is their intolerance for workplace drug testing policies that sanction workers for puffing pot while off the job.

Some two-thirds of Americans now say that it is ‘unacceptable’ for employers to fire employees who consume cannabis after-hours in states that have legalized the plant’s therapeutic or recreational use. That’s according to the findings of a new HuffingtonPost/YouGov poll released this week.

Sixty-four percent of the poll’s respondent’s, including 62 percent of self-identified Republicans, say that it is “unacceptable for a company to fire an employee for using marijuana during his or her free time ... if using marijuana is legal in [that] state.” An equal percentage of respondents similarly said that it would be unacceptable for an employer to fire an employee for after-hours drinking.

Only 22 percent of respondents said that it is acceptable for employers to fire workers who consume cannabis legally after-hours.

But despite these policies growing lack of popularity, courts have continued to uphold them — even in instances where the employee who was fired was explicitly consuming cannabis in compliance with state law. To date, the Supreme Courts of three states — California, Oregon and Washington — have each ruled that the legalization of cannabis on the state level does not mandate employers to accommodate workers’ off-the-job cannabis use by amending their workplace drug testing policies or sanctions. 

“Washington courts have recognized that [the] purpose [of Washington State’s Medical Use of Marijuana Act] is to protect the rights of qualifying patients to use medical marijuana in accordance with the advice and supervision of their physicians,” ruled the majority of Justices in 2011 in Roe v Teletech, the most recent state Supreme Court case addressing this matter. “Washington court decisions do not recognize a broad public policy that would remove any impediment to medical marijuana use or impose an employer accommodation obligation.” 

Similar court challenges remain pending in other states, including Colorado and Michigan.

But even in states that have yet to legalize cannabis, Americans are growing weary of workplace sanctions prohibiting employee’s off-the-job put use. Nearly half of respondents in the HuffPost/YouGov poll agreed that it is equally unacceptable for an employer to fire an employee for consuming cannabis while off the clock, regardless of whether or not he or she resides in a state that has legalized it. And it’s easy to see why.

Since conventional workplace drug tests only detect the presence of inert drug metabolites, non-psychoactive by-products that linger in the body’s urine well after a substance’s mood-altering effects have subsided, it is impossible to the tests to make any determination regarding when an employer last used a controlled substance or whether he or she was actually impaired by it. In the case of cannabis, this technology is even more discriminatory because marijuana’s primary inert metabolite, carboxy THC, is fat soluble and may be present in the urine of former consumers for many days, weeks, or in rare cases even months after they have ceased using it. (By contrast, metabolites for most other commonly screened for substances are water soluble and excreted from the body within a matter of hours or days.)

Furthermore, there exists no definitive evidence indicating that pot smokers make for poor employees or that drug testing them makes the workplace any safer. Writing in 2010 in the journal Addiction, investigators at the University of Victoria in British Columbia reviewed 20 years of published literature pertaining to the efficacy of workplace drug testing, with a special emphasis on marijuana. They concluded: “[I]t is not clear that heavy cannabis users represent a meaningful job safety risk unless using before work or on the job; urine tests have poor validity and low sensitivity to detect employees who represent a safety risk; drug testing is related to reductions in the prevalence of cannabis positive tests among employees, but this might not translate into fewer cannabis users; and urinalysis has not been shown to have a meaningful impact on job injury/accident rates."

Ultimately, employers ought to judge employees on the quality of their performance, not on the quality of their pee. And although the majority of employers and the criminal courts have yet to come to this common sense conclusion, it appears that much of the public already has.

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