How would the legalization of drugs affect drug testing in the workplace?

Let’s just say hypothetically that all the senators suddenly regained common sense and acknowledged that the “War on Drugs” is a massive failure and decided to legalize drugs. Well, let’s just start with marijuana to be ever-so-slightly more realistic. How would it affect drug testing in workplaces? Would they still be within their rights to refuse employment/fire employees for using a then-legal substance? I know some jobs make you do Breathalyzers (I had to before I started working for a wine company) so I assume it would be within their rights…

Any ideas? I posted this in GD instead of GQ since I doubt there’s a single, factual answer.

Rest assured, a means will be found to ensure that alcoholics remain quite safe and secure, but dirty fucking hippies, who don’t want to work anyway!..will be booted. The whole issue with pot is cultural, it has diddly squat to do with anything else.

There are currently jobs that restrict consumption of various pharmaceuticals for safety reasons - if the war on drugs ended tomorrow it would still be illegal to, for example, fly an airplane while under the influence of many substances such as alcohol and even common over the counter medications. In that sense, drug testing would not disappear. Hypothetically, it would be limited to issues of safety.

Well, if a law gets passed decriminalizing the drugs, that means public opinion is probably in favor of it. Since a majority of people just wouldn’t care anymore, less businesses would, too.

So I don’t think the law would affect drug testing so much as reflect it.

Why would businesses suddenly decide to stop drug testing? I don’t think the fact that drugs are illegal is the primary motivator behind the testing.

If marijuana were suddenly put on the same plane as alcohol - and they still tested - that beer you are drinking right now would trip up your oppotunity at job prospect X just as much as that bong next to your monitor. Testing for other nefarious drugs would continue ad infinitum unless they were all leaglized.
Testing is often a judgement on one’s lifestyle as it is an indicator of what kind of worker you are going to be to the company. See elucidator’s post above…

Uh, what? The fact that both beer and marijuana would be legal does not mean that employers would therefore have to test for both if they wanted to test for marijuana.

Right, and they wouldn’t be testing for either if both were legal now would they? What do you think the primary motivator is for drug testing? Is it to see if you have smoked a joint in the last 30 days? or Sniffed some cocaine? Alcohol is no less of a drug than marijuana, it’s a societal thing not an actual barometer for how good you will do in a particular job. If they were looking for that, they would require I.Q testing and aptitude tests…They want to see if you are a pot smoker and lead the lifestyle associated with it. They could care less if you are a raging alcoholic that beats your husband.

I think the primary motivator for marijuana testing is a (false) belief that use of marijuana connotes other undesirable behavior/attributes. I don’t see why legalization of the drug would change that.

Since you are making the claim that legalization would end testing, which motivation for drug testing do you think disappears with legalization?

Sadly none. That’s why it would have to be a cultural paradigm shift and we all know that is not going to happen. Without inserting my own beliefs about drug testing, I’d say if marijuana alone were leaglized there would cease to be a reason to test for it.

OK, I would foresee the following:

As mentioned, many workplaces would maintain testing for safety reasons, and to that you’d add those who may not test preventively but would reserve the right to test “for cause”, when there is any suspicion that you have been working while impaired – in order to make things fair, this would also have to apply to alcohol, of course.

The terms would probably have to be something clearly spelled out at the time of hiring and before you accept an offer of employment. One thing that would further level the playing field would be if the technology were developed to measure for various nonalcoholic intoxicants, with roughly the accuracy of the breathalyzer, if you are actually under the influence NOW, as opposed to having traces of heving been exposed some time in the recent past. After all, right now if you’re a machinery operator and have an accident, the Man would really like to know your BAC at the time of the accident, not what you drank last Saturday night. This is of course a bit more complicated then, the various psychoactives run the gamut from mild sedatives to strong narcotics, from moderate euphorics to violent stimulants (and do I really want my salesclerk to be alarmed that if she opens the cash drawer, army ants will crawl out and climb up her legs?).

This would probably mean that unless you explicitly contracted otherwise with the employer, then they would have to prove that you were impaired while on the job, and there would have to be no penalty for partaking in your off-time, any different than if you drink on your own time. But there’s the rub. What keeps a private employer from saying we will not contract for employment with a person engaging in certain conducts? In many “employment at will” jurisdictions, on those issues that Equal Employment/Civil Rights laws don’t explicitly protect, your choices are jumping through the employer’s hoops or applying elsewhere.

And that brings us back to the “undesirables” issue based on cultural/social valuations: that an employer may be basing his hiring or promotion policies on “I don’t like the kind of people who smoke pot and munch granola; I like the kind of people that knock back beers and grill steaks”. Or even, “Goodness gracious I can’t stand those twitchy, googly-eyed, hyper speed freaks – give me some nice, mellow, sunshiny granola munching potheads for the office”. Without true sociocultural change (say, it were a Supreme Court decision), it could be a mess.

Someone meanwhile would almost certainly argue that for reasons of saving on health insurance costs, this company will want to delimit certain categories of legal intoxicant and levels of consumption thereof that we consider specially risky, and monitor you for it. This, however, creates a problem in that the insurance company would probably have more to save by getting quite intrusive re: consumption of tobacco, alcohol, trans-fats, and other legal “risks” … and the most that would happen is the insurance rate goes up and it gets distributed among the entire payroll.

I’d have to wonder what grounds a business would have to test for a legal product, save reasonable suspicion that one was impaired on the job by said use. Frex, I can’t imagine that a business that decided to test for nicotine or alcohol use within the last ninety days (if such a thing is possible) would pass any privacy protections in place for workers–

HAHAHAHAHAHAAHAHAA oh my I do come up with a corker every now and again!


I do think that without the stigma of illegality I’d find it difficult for a company to justify a policy of testing for a legal product, and jurors would be awarding mucho dinero to anyone fired for using a legal product, save those in the usual obvious vocations.

Can you point me to a workplace privacy statute that would prevent this kind of testing?

I am under the impression that most workplaces can legally test for, say, tobacco use. Am I wrong?

ETA: oops, on review, you’re being sarcastic. Still, you seem to think this might be illegal. Why?

The big difference I see is the fact that marijuana stays in your system for up to 30 days. Booze is in your system for 12+ hours depending on what and how much you drank.

If I know that I have a drug test tomorrow, no problem, I lay off of the booze tonight.

If you are a weed smoker and partied two weeks ago, you’re screwed…

Since in most states you can fire employees for pretty much any reason apart from certain types of discrimination, I doubt that jurors would get much opportunity. A narrow majority of states have prohibited firing people for smoking outside work hours, but it is still allowed in the rest. Even if marijuana were legal, I wouldn’t expect to see states rushing to prohibit discrimination against pot smokers.

It’s not quite that long, but this definitely presents a problem.

On one hand, I believe an employer has the right to utilize drug testing services to ensure a drug-free workplace. Unfortunately, this right doesn’t mesh with the fact that drug testing technology is still in its infancy. The current method for testing for marijuana usage is crude and primitive: probing for an **psychoactively inactive ** metabolite that can stay in one’s system for a week or more. A positive result for marijuana doesn’t say whether the employee was intoxicated on the job, it just indicates that the individual has smoked marijuana or been around others who have in the past week or more.

This could all be changed drug testing probed for the parent molecule of the drug. This would prove with some measurable accuracy that the employee was intoxicated in the work place. My hunch, however, is that most employers aren’t attempting to create a drug-free workplace but are interested in restricting certain activities, no matter how benign, outside the workplace. Frankly, I think it sucks and should be illegal. What an individual does in the privacy of their own home, illegal or not, is none of the employer’s business.

  • Honesty

My impression has always been that the reason that a company could test for illegal substances is the fact that they are illegal substances–an offshoot of the War on Drugs. But that was my WAG–on further consideration, however, protection from testing of ingestion of any particular substance is not provided under any national statute, though certain states such as California, Iowa, and Vermont have passed laws to limit random testing for even illegal drugs.

Nor would I. More’s the pity.

However, alcohol does have to be imbibed personally. Weed can be inhaled via contact high, and probably would be detected by the same test… and if it’s legal, contact highs could happen much more frequently.

You seem to be living in a time warp. CEO-age people (like me) went to college in an environment where drugs were all over the place - assuming they didn’t go to a military academy. There might be some companies with drug testing, but I doubt the majority would. The Fortune 500 company I work for today doesn’t, and certainly wouldn’t - and the CEO has a ponytail anyhow.

As for what would happen, I think JRDelirious has it nailed. Today who can complain about a test for something illegal? If it were legal, lots of people would leave.