“Marijuana Legalization: Does it bring new issues into the Workplace?”

Question: I read today that “recreational” use of marijuana became legal in Colorado on January 1st. I work in Colorado in the education industry, so my question is how will this law affect drug tests required by such community workers where sobriety is of utmost importance in keeping people safe?

Could it be that they are lowering the testing parameters to check if someone is sober at the time of his test? With urine tests, alcohol does not remain in the system beyond 24 hours or so. But with marijuana, as I understand it, THC (the active ingredient in marijuana) stays much longer.

Could you please clarify.

A Loyal Subscriber
Fountain Valley, Colorado 

Answer: Dear Loyal Subscriber: Your question highlights an interesting issue that is sure to arise in the workplace. Here’s my best answer – and prediction:    

1. Whenever our society grants a degree of greater freedom, our society must at the same time consider the potential consequences of that greater freedom. Most of us believe that freedom is a good, precious and valuable part of life. Freedom to do something should never – unless necessary – be restricted. Then again, most of us believe that it is also a good thing to have security – that is, “freedom” from fear, harm, abuse and injury. Whenever society liberalizes any rule, restriction or regulation of behavior, that is, permits a wider freedom, it must at the same time conserve what is also important to us all: our safety and security.

2. The legalization of recreational marijuana use is a kind of greater freedom. There are many good reasons why people should be entitled to use marijuana “recreationally,” that is for the fun of it. At the same time, there seems to be more and more evidence that marijuana is also extremely useful and effective in the treatment of certain illnesses. Accounts I have read about and seen on television of the tremendous comfort and assistance marijuana can give to so many people who are ill have been just amazing. And, too, legalizing recreational use of marijuana also presents the opportunity for new jobs in a new industry, new sources of taxes for local and state governments, and the diversion of monies away from organized criminal groups. For all these reasons, and others, too, legalization of recreational marijuana consumption seems a wise step.

3. However, marijuana stays in the blood for several days, and no one wants their airline pilot, their kid’s bus driver, their mother’s eye surgeon, their home electrician or the factory worker who puts together their father’s heart pacemaker to be even “a little high” on the job. Even those who are ardent advocates of the legal consumption of marijuana are not in favor of the person who flies their airplane, or performs their mother’s eye surgery, or the person who drives their kids’ school bus on the interstate highway, to be doing those things a mere eight hours after “toking up on some truly killer weed.”

Airline pilots may be both pot-smokers and employees. Bus drivers may be both pot-smokers and employees. Likewise for eye surgeons and those who put together heart pacemakers: they are also employees, and may also enjoy their daily “bong hits.”

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4. As a general rule, employers are also “free” to put in place rules and policies to protect their businesses from harm, their employees from harm, and their customers from harm; in fact, they are “not free” to fail to do so, but can be  held accountable for the mistakes of employees who are even “a little bit high.” Let’s imagine, for a moment, a restaurant chef had a few friends over on Sunday evening to taste some unbelievable marijuana brownies she baked that afternoon. Let’s imagine that the next day, she was in her restaurant’s kitchen, and forgot for a few minutes to turn down the heat under a pot of boiling oil she was preparing for the fried clams on the menu. The result: two cooks and one waiter were terribly scalded – and permanently scarred – with boiling oil.

In most states, employees can do whatever they wish on their days off, but employers are free to fire them if those “days-off activities” affect the workplace. Such “days-off activities” that can get an employee fired include (a) dating a subordinate from work, (b) getting arrested and convicted of a crime, (c) even smoking cigarettes, because smokers are known to be absent more and incur greater healthcare costs. Thus, we are already permitting employee “freedoms” to be limited by employers if those “freedoms” might reasonably be expected to affect the workplace.

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5. Every employee is entitled – by law – to a safe workplace, and to be “free” from foreseeable on-the-job injury; that applies to customers, and the general public, too. Every employee is entitled to be “free” from such terrible pain and lifelong scarring as the restaurant workers suffered in the above example. In fact, the law requires it: every employer must take “reasonable precautions” to make sure they are all safe from “foreseeable harm.” There is simply no question about it: those are the types of injuries and issues that will be seen, and whoever is “negligent” in any way will be held accountable. The same thing holds true for the employers’ customers: they, too, are entitled to be “free” from potential injury at the restaurant, on the airline, and in the hospital.  

Imagine if your daughter was brought to an emergency room, and given 30 milligrams of a drug instead of the 3.0 milligrams prescribed? Would you be upset if the nurse who made the mistake had never been tested for marijuana use?

Everyone who drives a car is also entitled to be “free” from the “ buzzed highway truck driver,” as is everyone who uses a tea kettle with a poorly welded handle; thus, all employers will be likely to be deemed “free” to require reasonable tests to identify marijuana in the bloodstream, and perhaps not “free” to fail to do so. 

6. So what do we, as a society, do? Either (a) permit airline pilots, truck drivers, chemistry teachers, cops and all others to be “a little high,” or (b) permit employers to test more employees on a frequent basis, to prevent harm before it happens. This week in New York City, a federal judge approved a City requirement that every police officer who fires a gun on duty to be immediately given a breathalyzer test to determine if he or she was drinking on the job. I think you will see this sort of thing, and regarding marijuana in the blood, random blood and urine testing, as well.

While, sadly, it may take some needless tragedies before the public accepts such stricter employer practices, I think that they are all inevitable – the tragedies, the lawsuits, the public outcry, and the legal “freedom” of employers to protect their employees, their customers and the public by preemptive, frequent and random blood or urine testing, or other means of identifying marijuana in the blood.  

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7. Will employees found with marijuana in their blood or urine be given second chances, severance if terminated, the right to unemployment benefits if fired for being “a little high” on the job, or even confidentiality about their reason for termination? Only time will tell. While I foresee the public, our legislatures, insurance companies and juries permitting – and perhaps requiring –  employers to test their employees for marijuana in their blood or urine, and thus being “a little high” on the job, I am not too confident that “secondary effects” of marijuana use  on those who are “caught” engaging in this activity – even on days off.  

Some people are reportedly moving to Colorado because of the new marijuana law passed there, while others are reportedly moving out of Colorado to other states as a result. Everyone is “free” to do either.

Might airlines, hospitals and school bus companies begin to advertise “Use our services because we urine-test our employees daily?” They would be “free” to do so.

Would you be more likely to fly an airline that advertised that? Or a hospital? Or a school bus company? You would be free to do so. Only time will tell if they will advertise that, or you will be swayed by that advertising, or if I will, too.

Loyal subscriber, I hope this is helpful to you. Thanks for writing in, and thanks, too, for presenting such an interesting question. If you are an investor, here’s a stock tip for you: companies that make employee-urine testing kits might find a place in your portfolio, especially if they do business in Colorado.

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My Best,
Al Sklover

Repairing the World,
One Empowered – and Productive – Employee at a Time™

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