It has long been a common understanding among career-driven individuals that if you intend on building a career, then you’re going to have to pass a drug test or two along the way.
Drug testing has been a part of the recruitment and hiring process for quite some time. However, in the recent decade, this business policy staple has been thrown a curveball with the introduction of legalized medical, and even recreational, marijuana use. There are a lot of opinions surrounding how businesses should treat this issue in the workplace and in some instances it has left businesses with more questions than answers. If a business doesn’t regulate alcohol use can it justify regulating marijuana use in states where it’s legal recreationally? Is it discrimination to not hire someone who fails a drug test even though they have a valid medical reason for its use?
Business Culture Evolves
So how did drug testing become a common practice in the first place? Drug tests were initiated in the US military in 1971 after the Vietnam War. Soon thereafter, in the mid-1980s, businesses began drug testing and the Drug-Free Workplace Act was passed in 1988. This required that Federal contractors and Federal grantees provide a drug-free workplace in order to obtain a contract or grant. This piece of legislation set the bar for every business that aspired to score one of those highly coveted government contracts. In order to set their business up for success, many companies implemented a drug testing policy to keep themselves in the running for government contracts as well as reduce other potential liabilities. According to SHRM, half of U.S. employers drug test their employees.
HR Nightmare
How is a business with an employment drug testing policy supposed to handle the growing legalization of marijuana? Well, most businesses are still trying to figure that out. Despite individual state’s decriminalization and even legalization, it is still illegal at a federal level and that trumps all. So even if you live in a state where recreational use is legal, if you maintain a government contract your employees will have to continue abstaining from medical and recreational marijuana use. You may be wondering, but doesn’t the ADA (Americans with Disabilities Act) prohibit discrimination based upon a medical condition? Yes, but illegal drugs (marijuana is considered an illegal substance federally) are excluded from this piece of legislation.
CO Supreme Court Sides with Employer
In 2010 Dish Network fired an employee, when a random drug test revealed he had used marijuana at some point. Dish Network has a zero-tolerance drug policy, even at its locations in Colorado where this incident took place. What made this such a high profile case is that the employee, who is quadriplegic due to a car accident, uses prescribed medical marijuana when he’s off-duty to control his leg spasms. Despite his seemingly legitimate reasoning, his firing was upheld in trial court, CO Court of Appeals and then finally the CO Supreme Court. This established a legal precedent that employers could legally enforce a drug policy despite how a state views the drug in question. This ruling might not seem fair but we have to take into account that businesses are subject to many regulations that must be implemented on a company-wide level. If there’s a contract in place, like a federal contract, that requires a drug-free work environment, then that company must honor that requirement or risk losing the contract. It can’t pick and choose where, geographically speaking, to honor that agreement.
Marijuana Legalization in Canada
It will be very interesting to see how federal policies evolve now that Canada has legalized marijuana. With the growing number of US states that continue to legalize marijuana, one can’t help but wonder if the U.S. will soon follow in its neighbor to the north’s footsteps. However, the general consensus is that this is still a long ways away from happening despite how many states defy federal law. In the meantime, expect many more court cases and clever ways to circumvent employment drug testing regulations.
If you want to know more about the history of drug testing and the legality of the process, VTR Learning offers various courses to get you started.
Article written by Vaughn Pourchot
