Should we ban marijuana drug testing in the workplace? | The Tylt

Labor law attorney Todd Scherwin warns there may be some exceptions for medicinal use, but even medicinal and recreational users need to be very wary.

“Be careful and don’t think that you have any extra protection just because it’s now legal.” He says if you are drug tested and it comes back positive for THC: “The fact that you smoked it the day before is not going to save someone’s job. The employer is going to be within their right to terminate.”

Several cases involving employees with permits to use medical marijuana have reached the courts, and most have been decided in favor of allowing employers to test employees—and fire them.

The most widely cited case is a 2015 Colorado Supreme Court that upheld Dish Network’s firing of a disabled man who used medical marijuana and failed a drug test. The court ruled that a state law barring employers from firing workers for off-duty behavior that is legal did not apply because pot remains illegal under federal law. Similar rulings have been issued in other states including California, Montana and Washington.

The ACLU said drug testing is a violation of personal privacy—and this was before numerous states passed laws legalizing some form of cannabis. It's not your employer's business what you do in your spare time if it doesn't affect your work. 

Activists say parties fervently promoting drug testing and punishing cannabis users usually profit from those industries. If you own a drug testing company or invest in private prisons, you shouldn't have a say in this matter.

Some states are taking steps to change the laws so cannabis can't be included in employee drug tests. There are numerous circumstances under which cannabis is legal, so why would you punish your job candidates or current employees for using it as medicine or recreationally in their spare time? 

Others argue that for certain professions, such as healthcare workers, pilots, and drivers, testing for any drug use should be legal and maybe mandatory.