Spring Break
Can you get fired for medicinal marijuana use?
Kathleen Harward
Issue date: 5/5/08 Section: Opinion
As long as federal law continues to criminalize the cultivation, possession, distribution and use of marijuana, I don't see any court forcing employers to employ people who use medicinal marijuana.
But, just for fun, let's suppose that marijuana were decriminalized at the federal level.
With that obstacle out of the way, you'd have to ask whether you really want courts and the law to take away employers' discretion. Is it right to force a business to employ medical marijuana users if the employer believes marijuana use will affect job performance?
Users of medicinal marijuana state that they are not impaired by the drug like a recreational user because of their careful and steady use. While I believe this is true in many cases, do we want to mandate a policy across the board?
The ADA, and state versions of it, still require that the employee be able to perform the essential functions of the job. It's a question of whether an employer should have to prove that an employee is impaired or whether the employer, who owns the business and knows it best, can make a decision based on discretion alone.
This week Congress passed, and President Bush is expected to sign, a law that creates a new category of protected persons: one who has undergone genetic testing. This law will forbid employers from making firing and hiring decisions based on the results of an employee's genetic testing.
DNA testing is certainly different than drug testing in that we have no control over the results of our DNA tests like we do over a drug test. Courts have upheld the right of employers to require drug testing as a condition of employment.
Even if courts were inclined to also uphold the right of employers to require DNA testing, I don't think market forces would allow mandated DNA testing to become the norm.
You don't need laws to keep this from happening. Employees are free to move to the next employer if they don't want the privacy of their DNA code invaded. I cannot imagine a marketplace in which employees will allow this sort of invasion of privacy to become the norm.
In short, medical marijuana users, you'd better search for an employer who doesn't require drug testing. And students, please keep bringing us your questions. Yours are all interesting, and they keep us lawyers happy.
Kathleen Harward is the director of Student Legal Services. SLS' column appears biweekly Mondays in the Collegian. Letters and feedback can be sent to letters@collegian.com.
But, just for fun, let's suppose that marijuana were decriminalized at the federal level.
With that obstacle out of the way, you'd have to ask whether you really want courts and the law to take away employers' discretion. Is it right to force a business to employ medical marijuana users if the employer believes marijuana use will affect job performance?
Users of medicinal marijuana state that they are not impaired by the drug like a recreational user because of their careful and steady use. While I believe this is true in many cases, do we want to mandate a policy across the board?
The ADA, and state versions of it, still require that the employee be able to perform the essential functions of the job. It's a question of whether an employer should have to prove that an employee is impaired or whether the employer, who owns the business and knows it best, can make a decision based on discretion alone.
This week Congress passed, and President Bush is expected to sign, a law that creates a new category of protected persons: one who has undergone genetic testing. This law will forbid employers from making firing and hiring decisions based on the results of an employee's genetic testing.
DNA testing is certainly different than drug testing in that we have no control over the results of our DNA tests like we do over a drug test. Courts have upheld the right of employers to require drug testing as a condition of employment.
Even if courts were inclined to also uphold the right of employers to require DNA testing, I don't think market forces would allow mandated DNA testing to become the norm.
You don't need laws to keep this from happening. Employees are free to move to the next employer if they don't want the privacy of their DNA code invaded. I cannot imagine a marketplace in which employees will allow this sort of invasion of privacy to become the norm.
In short, medical marijuana users, you'd better search for an employer who doesn't require drug testing. And students, please keep bringing us your questions. Yours are all interesting, and they keep us lawyers happy.
Kathleen Harward is the director of Student Legal Services. SLS' column appears biweekly Mondays in the Collegian. Letters and feedback can be sent to letters@collegian.com.
Viewing Comments 1 - 1 of 1
Craig Hawley
posted 5/05/08 @ 2:28 AM MST
Wow that was a great and informative article. Thanks.
Good thing I work for my self. :)
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