Pot smoking poll. Would it be discrimination if....

[Tap]

Would it be a form of discrimination to terminate an employee for a positive drug screen to marijuana usage, if they live in a state that it is legal.

 

Lets put a few constants into place:

 

It is legal in the state in which someone lives and works, to posses and use marijuana. The use in question, was done legally.

The employer states upon hiring the person, that they can do random drug screens and a positive result will result in termination.  There is no list of specific drugs tested, just drugs taken 'illegally' ( would include illegal drugs like heroin, but also prescription drugs taken illegally).

The person works M-F. Use was on a Friday night, so the drug would not longer be affecting the person by Monday morning. 

The person does not operate any machinery make health/safety decisions for other people,  or drive automobiles for the employer......lets assume it is an office receptionist style job.

 

Dh and I got into this discussion tonight based on this article. I am not trying to duplicate his situation, just trying to get an idea of what people think about the topic.  We couldn't come to an agreement on whether it would be considered discrimination.....or honestly, even a fireable offence. 

 

 

 

 

 

 

 

 

[Veritaserum]

Not discrimination. You could theoretically get fired for failing a blood alcohol test at work too.....say youre a pilot or bus driver or teacher.....But it wouldnt be discrimination.

But someone can test positive for marijuana even weeks after their last use and be unimpaired in any way. Blood alcohol level is different because you're actually impaired at the time of testing. Unless there's some kind of test that knows you had a drink sometime in the past week?

[Veritaserum]

This reminds me of a weird and completely unenforceable policy at a company dh worked at. The policy was that no employee could drink alcohol at any time. It wasn't just banned at work or at lunch or at business functions/parties. It wasn't, "Hey, don't come to work drunk or hungover." It was no alcohol, period. The policy was written by the CEO, who also asked questions to ferret out a person's religion (her religion prohibits alcohol) during job interviews. I don't think she was ever busted for that.

 

The policy was revised to omit that clause after she retired.

[Joshin]

Not discrimination but still illegal. If he is under the influence on the clock or if his off the clock usage affects his work performance, then firing is a legal possibility. Perhaps a federal employer could dictate off-the-clock pot activities, but only because it's still illegal on the federal level.

[IdahoHomeschooler]

I work in a state that has legalized marijuana, but it is still grounds for termination to test positive for it. I think that's stupid, but I don't consider it discrimination.

[Ohdanigirl]

Isn't marijuana a drug that stays in your system a very long time?

 

As to your question, I am not too sure. I guess I never put much thought on to it because I rarely even have a drink, much less use marijuana. Is there a test that can be done to tell if the person is under the influence at that time? Or when they used it?

[gardenmom5]

, so the drug would be completely out of the person's system by Monday morning. 

 

if the drug was completely out of his system - he wouldn't have had a positive drug test result.

 

[Tap]

if the drug was completely out of his system - he wouldn't have had a positive drug test result.

 

true, I will modify that.

[kiwik]

Unless they were under the influence I think it would be discriminatory and illegal unless the employer had a viable reason - ie. You are an anti-drug educator or a pilot. Of course there is the endless argument of whether medical staff should be allowed to smoke or be fat so it is a pretty slippery slope.

[Shamzanne]

This is my problem with legalizing marijuana. If you can't tell how much someone has in his/her system or when they partook, how can you enforce laws against driving while impaired? Some idiot crashed into my car, my neighbor's car, and nearly my house in a motor home while under the influence (legally due to medical issues) and couldn't be charged with driving while intoxicated because he claimed it had been a certain amount of time since he partook and there was no way to prove otherwise.

[kiwik]

I work in a state that has legalized marijuana, but it is still grounds for termination to test positive for it. I think that's stupid, but I don't consider it discrimination.

I think it is unless there is a really good reason. Your employer has no right to dictate your out of work activities providing they are legal.

[Heather in Neverland]

If the substance is legal and consumed in a legal manner and that person is not currently impaired while at work, then there should be no consequences (similar to legal consumption of alcohol).

 

It's still "in your system" only matters if the person is IMPAIRED while at work. Lots of things technically stay in your system long after the effects are gone.

 

Having said that, I can't say I'm really excited about the idea of my pilot or my surgeon or even drivers on the road smoking pot "legally" until we find a breathalyzer-type test that can tell us if they are currently impaired the way we can do with alcohol.

[Heather in Neverland]

I think it is unless there is a really good reason. Your employer has no right to dictate your out of work activities providing they are legal.

That's not actually true. I've had to sign a "moral turpitude" clause as part of my contract for being a teacher. That means there are LEGAL activities that I cannot engage in while I work there.

 

For instance, I can LEGALLY be a stripper on the weekends but if the school district where I worked found out, I would be fired. I can LEGALLY date an 18yo if I am single and so inclined, but if that 18yo happens to be my student then I will be fired. I can LEGALLY go on vacation to Cancun and drink myself into a stupor as long as I don't drive. But if I post pictures of myself doing body shots on FB, I can be fired. And so forth...

 

And that's when I worked at a public school. Now that I work at a private Christian school, the list is even longer.

[Melissa in Australia]

the person will already know that his workplace does random drug testing. often the random drug testing is because of safety reasons. a very large proportion of work related accidents are due to people's use of drugs on the weekend with the mistaken belief that because they do not feel high ay more that they are no longer impaired.

 

depending on the strength and frequency of use it can result in mental  impairment  for up to 3 weeks ( decreasing each day over that period).

 

There have been studies that show that the THC is stored in the fat and physical exercise releases it up to a year after use ( this of course depends on the strength and frequency of use). this can result in slight mental impairment if you do hard physical activity and then were doing highly technical things but not enough to make you feel "High"

[NicksMama-Zack's Mama Too]

the person will already know that his workplace does random drug testing. often the random drug testing is because of safety reasons. a very large proportion of work related accidents are due to people's use of drugs on the weekend with the mistaken belief that because they do not feel high ay more that they are no longer impaired.

 

depending on the strength and frequency of use it can result in mental  impairment  for up to 3 weeks ( decreasing each day over that period).

 

There have been studies that show that the THC is stored in the fat and physical exercise releases it up to a year after use ( this of course depends on the strength and frequency of use). this can result in slight mental impairment if you do hard physical activity and then were doing highly technical things but not enough to make you feel "High"

 

This. 

 

I wonder if the company that insures the business is okay with dropping the drug-testing?  I think many of these companies that do random drug testing, do so to satisfy their insurance companies.  It will be interesting to see how this all pans out.

[Chris in VA]

I don't think the proper word is "discrimination," but I don't know what it is.

[Crimson Wife]

I know of employers that enforce a no-tobacco use rule, so I think if it is part of the employment contract, it would be legal.

[Annie G]

I'm not quite sure how I feel about all this. On the one hand, I'm in favor of legalizing pot  (though I'd never smoke it).  But employers have to be careful not to expose themselves to lawsuits and this is a tricky situation.

 

Dh runs a test lab for switches that get put on airplanes and in space suits, and also military applications.  They are subjected to random drug testing because they want to be sure the techs aren't impaired. If a tech is impaired and a test is improperly done, a plane might go down, killing hundreds of people.  So they really try hard to make sure they do everything that can to cover their butts in case something happens.  (Random drug testing becomes not so random when a tech is displaying behavior that alarms management.  Is that right? I don't know, but it does result in some guys calling in sick on Monday after a partying weekend instead of possibly being chosen for a drug/alcohol test and failing)

 

 

 

 

[Amy in NH]

You can terminate an employee for coming to work drunk, and alcohol is legal.  I don't see why it would be discrimination to prohibit employees from coming to work impaired by other substances as well.  But recreational use of a legal substance on the employee's own time which does not impair the employee's ability to do their job would not be an offense warranting termination.

 

The case you bring up, about an illegal drugs clause, wouldn't apply because the substance is legal.

[Veritaserum]

Should pilots, techs, machine workers, etc. be allowed to take prescribed narcotics for pain management while off duty?

[poppy]

I don't know if it's discrimination. But if it happened to me (fired while NOT impaired), I would hire a lawyer.

[TracyP]

This is the trickiest part of legalizing pot, IMO.

 

You can't tell whether someone smoked last night or last week. I do not want to see a doctor or hire an electrician or fly with a pilot who smoked last night. If they smoked last week I would not have a problem with it. I support legalization but this is something that needs to be sorted out.

[AlmiraGulch]

It is definitely not discrimination.  Discrimination involves acts that violate the rights of someone in a protected class.  Drug users are not in a protected class.

 

Companies in most states are allowed to test applicants for substances, and test current employees randomly, provided the employees were notified in advance that random testing was a possibility, or after an accident on the job.  They are also permitted, in most states, to test specific employees if there is reasonable suspicion that they are impaired on the job.  

 

Also, drug testing is a federal mandate for some professions, like for the pilots that people keep mentioning, train engineers, and others.  In those cases, state law is irrelevant. 

 

[ktgrok]

That's not actually true. I've had to sign a "moral turpitude" clause as part of my contract for being a teacher. That means there are LEGAL activities that I cannot engage in while I work there.

 

For instance, I can LEGALLY be a stripper on the weekends but if the school district where I worked found out, I would be fired. I can LEGALLY date an 18yo if I am single and so inclined, but if that 18yo happens to be my student then I will be fired. I can LEGALLY go on vacation to Cancun and drink myself into a stupor as long as I don't drive. But if I post pictures of myself doing body shots on FB, I can be fired. And so forth...

 

And that's when I worked at a public school. Now that I work at a private Christian school, the list is even longer.

 

Exactly., It's not about legal or illegal, it's about upholding the company image. Lots of jobs have clauses like that. I know I worked somewhere where I was allowed to drink off the clock, but NOT if I was wearing my uniform. Being seen out in my uniform, drinking, was grounds for discipline. 

 

I also know someone that was fired for smoking, off the clock. A clause in the hiring contract said they do not hire smokers or some such thing. 

 

It's often in what is called a "morals clause". 

 

That said, if the contract/handbook says they will fire for "illegal drug use" and the drug was legal, than they have grounds for suing for illegal termination or breech of contract or some such thing, I would think.

[KungFuPanda]

I think it is unless there is a really good reason. Your employer has no right to dictate your out of work activities providing they are legal.

This isn't true. There are certain professions where you cannot do legal things that are OK for other people. A teacher cannot moonlight as a stripper. People with security clearances have limitations others don't. Heavy equipment operators can't take certain legal drugs. Pilots can't skip too much sleep. It depends on the job and the employee sets those standards. They should inform their staff. In the case of marihuana, where laws changed recently, it is the employees responsibility to communicate with the employer before venturing into any gray area territory. If he went "What the heck. It's legal now. I'm gonna smoke and not worry about the drug test." that was not wise and I have no sympathy.

[elegantlion]

Should pilots, techs, machine workers, etc. be allowed to take prescribed narcotics for pain management while off duty?

 

This would be my concern. There are some wicked effects to prescribed medication, I have no idea which of those show up on drug tests. 

 

I would have issue if I were fired for something that was legal and not restricted by my employment. 

 

This is a trickle down issue that will need to be dealt with through different testing parameters or end up being tested in the courts. 

[vonfirmath]

Alcohol is legal everywhere, but companies are perfectly legal to terminate employees who show up drunk.

 

[Tanaqui]

Not a lawyer, but it seems like it could be discriminatory if they are taking marijuana for medical or religious reasons, as some people do.

 

Whether or not it is discriminatory, they ought to clarify their contract so it is clear that certain legal drugs can also lead to termination.

 

[vonfirmath]

This. 

 

I wonder if the company that insures the business is okay with dropping the drug-testing?  I think many of these companies that do random drug testing, do so to satisfy their insurance companies.  It will be interesting to see how this all pans out.

 

Or their customer.

 

I don't think my boss wants to do drug testing at all. He'd rather hire and fire based on actions and performance. but that would be unacceptable to the folk who hire us.

 

In fact we've had customers who have walked onto the site and said "Everyone go to that office trailer" and tested everyone on the spot.

[poppy]

Alcohol is legal everywhere, but companies are perfectly legal to terminate employees who show up drunk.

 

I think everyone agrees that a person should be fired for showing up at work inebriated with any substance. The question is, if the boss had evidence you used pot days ago, should THAT  get you fired?

 

To me it seems like firing someone because  on Monday morning, you see a photo of her drinking in a bar over the weekend.  Not drunk, not doing anything crazy, just having a drink.

[FaithManor]

Boy, that's a legal mine field.

 

I know that in Michigan it was approved for medicinal use - ie. prescription if memory serves - but my dad's employee handbook says that a positive test would result in immediate termination because many of his employees have to power equipment, saws, drill presses, etc., and installers get on rooftops...not good to be up there under the influence. He would also terminate for alcohol if it were detected on the job as well. It's pretty well spelled out. So in that sense it wouldn't be discrimination because the employee agreed to the terms of employment. He has them sign an employment contract. There are huge safety issues at stake so he has to be tough about it. He's never had to fire for any kind of drug use, but twice in the past four years for alcohol.

 

The hard thing for marijuana is that it's a he said/she said. The employee might say "Oh I used a week ago while on paid vacation." But, how does the employer know for certain that this is the case and it's not that they used last night and came to work under the influence. I don't think these drug tests are like H1AC or whatever that is for diabetes where it gives a picture of high blood sugar levels over a long period of time. These are, yes we detect it, or no we don't and no real way to interpret that data.

 

So, probably the employer has to consider safety and liability first and foremost.

[VeteranMom]

No, it's not discrimination.  A lot of jobs require alertness and they screen people for that reason.  I've had to take drugs tests for several RN jobs.  Also, when I was in the Air Force people actually watched me as I peed for my multiple random drug tests.  They watched me pull down my pants and pee into a cup.  If you don't want your job to screen you for drugs then find a job where they don't screen you as a part of your employment.

[poppy]

No, it's not discrimination.  A lot of jobs require alertness and they screen people for that reason.  I've had to take drugs tests for several RN jobs.  Also, when I was in the Air Force people actually watched me as I peed for my multiple random drug tests.  They watched me pull down my pants and pee into a cup.  If you don't want your job to screen you for drugs then find a job where they don't screen you as a part of your employment.

 

Ah, but those tests are for illegal drugs. Plenty of people take Zoloft, Zantac, Lipitor, Levoxyl every day and pass those tests.  And plenty of legal uppers & downers.....

[Joanne]

if the drug was completely out of his system - he wouldn't have had a positive drug test result.

 

 

The effects are entirely gone, but the physiological evidence of use takes approximately 21 days to clear for an actual recreational user. For someone who smokes more abusively/chronically, it can take longer.

[melmichigan]

In my area we have hospitals that won't hire you if you test positive for nicotine, it's also means termination if you test positive on a random test.

 

I know of people who carry marijuana cards with various jobs that involve alertness, even another medical professional.  Their employers don't do random drug screens, but they know they will be tested if they have any type of incident, and if they test positive they will loose their jobs.  (Many of the unions here block random drug screens.)  They know that they can't come to work impaired or risk their jobs.  They abstained long enough to pass their entrance drug screens.  

 

I don't see it as discrimination if you go against the restrictions set forth in your hiring agreement.

 

 

[apennieformythoughts]

In states where it's been legalized, both medically and recreationally, I think that policies need to be re-examined to take it into consideration. I don't consider it discrimination though. If you have a job where you know you are going to be drug tested, maybe you should take that into consideration before you take the job. However, I do think that it should be overturned in states where it's legal, and people should be fired for pot use only if they are actually impaired. If you think about it, drugs like meth and cocaine leave your system quicker than pot. Yet I think the effects of using those drugs are more detrimental and scary than weed, so I'd rather have a pothead do work for me than a tweaker. But the pothead will be fired before the tweaker, based solely on a drug test. 

[albeto.]

If a person's employment is terminated because of smoking pot, then yes, that employee has been discriminated on the basis of smoking pot. Perhaps the question you mean to ask is about the legal justification of discrimination. People discriminate all the time. Employers discriminate based on work production or ability to get along. It's legal to discriminate for these reasons. People discriminate based on race, religion, and gender all the time. It's illegal to discriminate for these reasons. 

 

In the article you linked, if the employee had agreed to the terms of employment to not smoke pot, then the discrimination would be legal. And probably a good idea. I don't say this because of the pot smoking issue, I think of weed as more benign than alcohol, but because any employee who would make such a public show of breaching employment expectations is an idiot and should be replaced with someone who can be trusted. 

[Arcadia]

There is no list of specific drugs tested, just drugs taken 'illegally' ( would include illegal drugs like heroin, but also prescription drugs taken illegally).

So if marijuana is legal only for medical reasons, recreational use would likely fall under prescription drugs taken illegally.

 

If marijuana is legal for any purpose then it is a gray area and the state would have to review its employment laws as to what might constitute wrongful termination with regards to marijuana use.

[poppy]

I'd think privacy laws would prohibit an employer asking if pot was smoked medically vs recreationally - especially if both are legal.

[Violet Crown]

IANAL, but wouldn't this be a straightforward question of whether there was an employment contract and/ or handbook? Then it's a question of whether the employer violated the terms.

 

Otherwise, it's employment at will, termination for "good, bad, or no reason," so long as the employer hasn't run afoul of state or federal antidiscrimination statutes. You can be fired because your employer finds out you're a Capricorn, or root for the Yankees. Discrimination, but not illegal.

[Wheres Toto]

Would it be a form of discrimination to terminate an employee for a positive drug screen to marijuana usage, if they live in a state that it is legal.

 

Lets put a few constants into place:

 

It is legal in the state in which someone lives and works, to posses and use marijuana. The use in question, was done legally.

The employer states upon hiring the person, that they can do random drug screens and a positive result will result in termination.  There is no list of specific drugs tested, just drugs taken 'illegally' ( would include illegal drugs like heroin, but also prescription drugs taken illegally).

The person works M-F. Use was on a Friday night, so the drug would not longer be affecting the person by Monday morning. 

The person does not operate any machinery make health/safety decisions for other people,  or drive automobiles for the employer......lets assume it is an office receptionist style job.

 

Dh and I got into this discussion tonight based on this article. I am not trying to duplicate his situation, just trying to get an idea of what people think about the topic.  We couldn't come to an agreement on whether it would be considered discrimination.....or honestly, even a fireable offence. 

 

I'm answering without reading the other responses so if the conversation has shifted this may make no sense.

 

IF it's a state where use is legal and IF they said a positive result "for illegal use" would result in termination - I don't think it would be a fireable offence.  No different than if the person was out drinking on Friday or Saturday night.  IMO.

[poppy]

IANAL, but wouldn't this be a straightforward question of whether there was an employment contract and/ or handbook? Then it's a question of whether the employer violated the terms.

 

Otherwise, it's employment at will, termination for "good, bad, or no reason," so long as the employer hasn't run afoul of state or federal antidiscrimination statutes. You can be fired because your employer finds out you're a Capricorn, or root for the Yankees. Discrimination, but not illegal.

 

36 states have an "implied contract" model and 11 have an "implied-in-law" contract.  Those would prevent "You like the Yankees? You're FIRED!" scenarios. Thank goodness.

[IdahoHomeschooler]

I think it is unless there is a really good reason. Your employer has no right to dictate your out of work activities providing they are legal.

 

Why don't they have that right?

[Valley Girl]

Why don't they have that right?

 

Because most things people do are none of their business? If it doesn't impact issues such as job safety, we don't need corporate nannies micro-managing our off-duty hours.

[PeacefulChaos]

I voted other before I read the OP.

 

I still would vote other, though. If the company has a policy about drugs, that is their right. They should absolutely be able to follow through on what they have stated regarding drug tests and termination.

The only time I would say they shouldn't is if they didn't already have a policy in place. BUT I still wouldn't consider that discrimination.

[poppy]

Which either way is difficult to prove and the burden of proof is on the employee.  Most people simply do not have the luxury to even bother with stuff like that.

 

Which is why I don't know why an employer would even bother with such nonsense as drug testing unless this is something that could directly impact the job.  And I could imagine some situations where it could.  But if it's about looking for a reason to get rid of someone....they don't really need a reason.

 

I have a background in HR. And I can tell you, any competent company will have a reason or will expect a lawsuit---- for white collar workers, at least.

[IdahoHomeschooler]

Why do they?

 

Unless it is something that somehow impacts the job performance, I don't see how they have any right to tell one what they do (legally) on their own time. I can understand some circumstances like not hiring smokers in some jobs. (Chip fabricators comes to mind because it impacts the job.) Otherwise...nope..not their business.

 

Of course they have the right. They can clearly spell out terms of employment and set out a code of conduct for their employees. Considering they are a rather large entity, with plenty of lawyers, I'm pretty sure they are well aware of their rights! I am also well aware of the conduct that is expected of me, on and off the clock. Hell, I have a code of conduct that governs my ability to obtain and keep my licensing. These entities have the right to set and maintain those standards. They have the right to enforce consequences on those that choose to not uphold those standards. I have the right to not renew licensure or to not work for my employer.

[IdahoHomeschooler]

Because most things people do are none of their business? If it doesn't impact issues such as job safety, we don't need corporate nannies micro-managing our off-duty hours.

I thought this was about marijuana, which can, indeed, impact job safety?

[IdahoHomeschooler]

Maybe for white collar workers. I wonder how many white collar jobs do regular drug testing. The only time I've had to submit to drug tests were for very stupid crap like gas station jobs. Which their argument is people on drugs tend to steam money. But still...I thought it was rather stupid.

 

I have only been drug tested for my white collar jobs. I was tested on hire, and am subject to random testing at any time. I have not been tested in a few years, but that is only by luck of the draw. Illegal drug use isn't the only drug use subject to disciplinary measures. I have to have a current (within one year!) prescription for any controlled substances that I use. Technically, I am in violation whenever I use an ambien or a Vicodin, because my prescription is no longer current.

[Murphy101]

Nope. All kinds of drugs and such are legal, but you can be fired for doing them if it comes back on a work drug test.

 

I suppose it might depend on the job as well.