The Case For Cannabis: Law Reform Would Bring Sense to Workplace Drug Testing

One of the worst things about cannabis prohibition is not that it gives people to opportunity to mistreat each other, but that it coerces them into doing so. The fact that cannabis is illegal means that people are essentially forced into taking particular measures when they come into contact with it. These measures often unfairly impact a number of people, which is another reason why the cannabis laws ought to be changed, as this article will examine.

Right now, in many places across the West, there is a common but extremely cruel phenomenon taking place. It is that of all of the people losing their jobs because of being forced to take a urine sample at work, and having it turn out positive for cannabis.

The logic goes like this. Many jobs, in particular those involving the operation of heavy machinery, cannot be performed safely by those under the influence of drugs. This goes for not only alcohol and cannabis but for many other substances. These jobs require a sober mind, because anyone not sober could easily kill themselves, someone else, or do millions of dollars worth of damage.

Fair enough. But because it’s not always possible to rely on a person to come to work sober, some insurance companies, as a condition of granting insurance, make it necessary for the company seeking insurance to perform drug tests on their employees so that they can remove the ones who are working under the influence of some drug, thereby making the workplace safer.

This is fair-ish, but where it truly crosses the line into unfairness is the fact that instead of testing for cannabis impairment, the urine tests test for the presence of certain metabolites that are present in the urine if the person has used cannabis at some point in the recent past, perhaps even 30 days (or more). So the urine test can only determine if you have used cannabis recently, not whether you’re impaired at the time of the test.

This means that “failing a drug test” has got little to do with whether or not your ability to do your job safely was impaired. Many people who get fired for failing a drug test are not even impaired at the time the test was taken. So a lot of people are getting discriminated against, unfairly, on account of cannabis use that probably isn’t even affecting their ability to perform their work duties safely.

In many cases, the employer is perfectly fine with this arrangement. Any employee who uses cannabis is more likely to be a freethinker and therefore disobedient, or more likely to demand a higher wage. A urine test that reveals both a tendency towards freethinking and evidence of having committed a crime is a perfect excuse to fire someone, but the option shouldn’t be available.

If cannabis became legal, some things would change with regards to this arrangement. Of course, cannabis law reform wouldn’t suddenly make it legal to go to work stoned. Every workplace would still be obliged to meet the same health and safety standards as before. The most likely difference is that it could become possible that any employer drug testing their staff was legally mandated to use swab tests to test for impairment, and not urine tests to test for the presence of metabolites indicating use within the past 30 days.

Generally employers prefer to do a urine sample because it’s cheaper, but if cannabis were legal, an employee might be able to bring a case for unfair dismissal to court if they were fired for the presence of metabolites in the urine. Such a case might well rule that, if cannabis is legal, such an action constitutes unfair dismissal, and therefore the employer is obliged to use a swab test to test for impairment instead.

It could be argued that employers would actually benefit from this policy as well. In the modern workplace, finding staff is harder than before on account of the increased need for training and education. If a person wants to work, there’s no reason why the fact that they smoked a bong two weeks ago should prevent them. The reality is that they’re probably safer than someone who is hungover.

It would be better for everyone for the law to change so that some sanity could be restored to the issue. If cannabis were legal, than the workplace standard would be a swab test for intoxication, not a urine test for the presence of metabolites. This would mean that it was possible to make a distinction between stoned people, who shouldn’t be in certain workplaces, and people who have used cannabis recently, who are no less safe than anyone else.

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This article is an excerpt from The Case For Cannabis Law Reform, compiled by Vince McLeod and due for release by VJM Publishing in the summer of 2018/19.