Thursday, June 25, 2015

You Can be Fired for Smoking Pot!

The Colorado Supreme Court handed down a decision in a matter that should have been addressed in that state’s (and others) law on recreational and medical use of marijuana. It ruled that medical marijuana patients can be fired for using marijuana, even if they only use the drug when they’re off the clock. That this question had to go to that state’s Supreme Court is really a commentary on the short-sightedness of the legislators who wrote and passed the law.

Colorado has both medical and recreational marijuana laws on the books, as well as a "lawful activity" law. Such laws prevent employers from discriminating against employees who engage in legal off-duty conduct. While the state’s medical marijuana statute stipulates that nothing in the law "shall require any employer to accommodate the medical use of marijuana in a work place", this case hinged on the state’s lawful activity law. The state Supreme Court had to codify that since marijuana is still illegal under federal law, its use could not be protected under any state law governing it. 

So, in Colorado, at least, an employer’s right to maintain a drug-free workplace has been retained. Other states should be clarifying their laws, as well, before the issue becomes a court case wasting time and money on both sides.

I’m not really sure I ever understood the argument that if it is legal to use (at the state, or even eventually at the federal, level) you should be allowed to have said substance in your system while at work. Alcohol is legal, yet we don’t argue that an employer shouldn’t be able to prohibit you from drinking on the job, or being under the influence of alcohol, while at work. Prescription pain medicine is legal, yet we don’t argue that an employer shouldn’t be able to prohibit you from being under the influence of that medication while at work. Why should it be any different with marijuana? Is it because we don’t have a good\legal measure (like blood alcohol level) to know if someone is under the influence? Maybe. And I certainly agree that one needs to be developed. However, until that time, or even at that time, I still don’t think I want to have someone who may be affected by the use of a mind-altering substance making my food, building or fixing my car, caring for my child/parent, etc., etc., etc.

What defense is left to a business when an employee on a forklift mows down three co-workers, or at the least destroys thousands of dollars of your customer’s product? What defense is there when your pizza winds up with some toxic substance on it instead of the mozzarella or oregano? How will a business respond when your loved one is left to wander out into the street? "Umm, gee, sorry. You see, it’s legal and we can’t prohibit its use, so we also can’t really test for it, and we couldn’t do anything even if we could! Sorry you/your relative/property were injured/destroyed." I’m not thinking that will go over really well in a court of law when you get sued.

And then there’s this: the percentage of U.S. workers testing positive for illicit substances such as marijuana, cocaine and methamphetamine has increased for the second consecutive year. 

Quest Diagnostics, a national clinical laboratory, issued its report Quest’s Drug Testing Index (DTI) and it shows that the positivity rate for approximately 6.6 million urine drug tests in the general U.S. workforce increased overall by 9.3%, to 4.7% in 2014 compared to 4.3% in 2013. 2013 was the first year since 2003 in which the overall positivity rate increased for urine drug tests.

There had been a decades’ long decline in the abuse of illicit drugs in the U.S. workforce, Quest said, noting that overall positivity for oral fluid and hair drug tests, representing approximately 1.1 million tests, also increased between 2013 and 2014.

Marijuana is still the most commonly detected illicit drug, Quest noted. Positive tests in the general U.S. workforce increased 14.3% between 2013 and 2014, and 5% between 2012 and 2013. In the safety-sensitive workforce, marijuana positivity increased 6% between 2013 and 2014, compared to 5.6% between 2012 and 2013. Researchers also analyzed urine drug test data from the two states with recreational marijuana-use laws. In Colorado and Washington, the marijuana positivity rate increased 14% and 16% respectively, between 2013 and 2014, roughly parallel to the national average of 14.3%. Again, this is in the workplace.

The research also showed steady increases in workplace positivity for cocaine and amphetamines over the past two years, reversing a long period of decline. The positivity rate for cocaine in urine tests increased by 9.1% between 2013 and 2014. Tests also showed a 7.2% year-over-year increase in amphetamine positivity in 2014 compared to 2013. The positivity rate for amphetamines is now at its highest levels on record and the positivity rate for methamphetamine is at its highest level since 2007.

Given this information, along with general common sense, it doesn’t appear to be a very good idea to put roadblocks in place that would allow these numbers to continue to increase.

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