Paper Example on Drug Testing: Medical Marijuana & HR Debate

Introduction

Drug testing is a contemporary issue that has sparked debate among human resource professionals. Many organizations conduct drug tests on in-house employees and from applicants. The role of human resource managers is to carry out drug testing programs effectively. Drug testing policies have created a divide among the public, especially management. Medical marijuana is at the center of this debate. The question always remains, do people who have medical marijuana cards get a pass for drug testing? Undoubtedly, changing laws are difficult to comprehend and extremely hard to enforce. The problems that arises is the inability to test on the spot since marijuana stays in the system for a long time. As new policies develop, challenges arise on how to proceed with pre-employment and periodic testing. It can be argued that the drug policies violate the 4th and 5th amendments of unreasonable search or seizure and due process respectively. Besides marijuana, alcohol use is also prohibited in the workplace. Even though alcohol is legal, laws and regulations are in place to protect the use of alcohol at work. On many occasions, the courts have ruled in favor of the legality of drug testing. As a human resource professional, workplace drug testing should be scrapped. The focus of drug policies should be to establish regulations for adult-use and medical marijuana usage. If employees are not reprimanded for legal use of alcohol while off the clock, then employees that live in states where adult-use of marijuana is legal should not face the same consequences. Most employers reject qualified applicants because of drug-testing laws. The paper contends that drug testing violates the 4th and 5th amendments. Also, other parts incorporated in the paper include marijuana and public policy issues as well as court cases about marijuana.

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Drug Testing and the American Law

Drug testing violates American law. The foundation of American law is the phrase "innocent until proven guilty." Making someone to take a drug test under the presumption that they are guilty of drug and alcohol use is a violation of American law. Jordan (n.d) asserted that drug testing violates the employee's civil rights. Besides, according to Gibbs (2019), most states fail to understand their employee's privacy rights. The author's point has merit because there is a constitutional privacy right against most drug-testing. Drug testing violates the 4th Amendment of unreasonable search and seizures (Comer, 1994). It violates an employee's right to privacy (Comer, 1994). It is inappropriate for companies to violate their employee's right to privacy. Both recreational and medical marijuana users do it outside of work. It is unreasonable for human resource professionals to organize drug-testing programs for things that employees do while off-duty. Drug testing violates the 5th Amendment. Jordan (n.d) indicated that forcing someone to take a drug test violates the due process where the employee is required to prove their innocence without being accused of a crime. Employers should have probable cause before subjecting an employee to drug tests.

Some states require confirmatory testing while others do not have such requirements (Gibbs, 2019). Different states in America have differing laws on recreational and medical marijuana use. States such as Alaska, California, Colorado, the District of Columbia, Maine, Massachusetts, Michigan, Nevada, Oregon, Washington, and Vermont allow recreational medical marijuana use (Gibbs, 2019). The states that allow medical marijuana are Arizona, Arkansas, Connecticut, Delaware, Florida, Hawaii, Illinois, Louisiana, Missouri, Montana, Maryland, Minnesota, New Jersey, New York, New Hampshire, New Mexico, North Dakota, Oklahoma, Ohio, Pennsylvania, Rhode Island, and West Virginia (Gibbs, 2019). States that allow the use of tetrahydrocannabinol (THC) concentration, route of administration, dose, and frequency include Alabama, Georgia, Indiana, Iowa, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Texas, Virginia, Wisconsin, and Wyoming (Gibbs, 2019). The states, which do not allow recreational or access to any medical marijuana products include Idaho, Kansas, Nebraska, and South Dakota (Gibbs, 2019). States such as Nevada, New York, and Massachusetts impose restrictions on an employer's ability to terminate or overturn an offer for a positive test (Gibbs, 2019). Besides, states such as California, Colorado, Michigan, Montana, New Jersey, New Mexico, Oregon, Washington, Florida, and Ohio allow employers to terminate employees who test positive for medical marijuana use. Some states allow employers to fire their employees after they test positive for drugs (Gibbs, 2019). However, one limitation to the general rule that employers can fire immediately after confirmation of drugs in an employee's systems is the Americans with Disability Act (ADA) (Gibbs, 2019). The ADA protects employees against discrimination due to a disability (Gibbs, 2019). The use of legally prescribed drugs falls under ADAs protection (Gibbs, 2019). Also, the ADA recognizes alcoholism as a disability and testing is discrimination from the employer's part (Gibbs, 2019). As per the ADA, an employer is not allowed to fire an employee if they take, for example, opioids for pain medication and they have a medication letter from their doctor (Gibbs, 2019). Furthermore, the Rohrbacher-Farr Amendment prohibits the U.S. Department of Justice from spending money to interfere with the implementation of state medical marijuana laws (Sliwoski, 2017). The amendment by Congress prevents states from implementing their laws that authorize the use, distribution, possession, or cultivation of medical marijuana (Sliwoski, 2017). The author suggested changing the Federal law so to enforce regulation and quality control testing (Sliwoski, 2017).

Marijuana and Public Policy Issues

Active Employee Substance Abuse Testing policy

Uzialko (2019) stated that many employers have a zero-tolerance policy of drug use at the workplace. For employers, the issue is not legalization but workplace safety (Uzialko, 2019). The drug testing policy requires that if the employer has a reasonable suspicion of substance abuse, employees will be required to submit for a drug and alcohol test at a laboratory chosen by the company (Cihon & Castangera, 2016). Circumstances that fall under reasonable suspicion include (1) observed drinking alcohol during work hours (2) evident physical state of impairment, (3) incoherent mental state, (4) change in personal behavior, (5) deteriorating work performance, and (6) accidents that may indicate employee is under the influence (Cihon & Castangera, 2016). If the test turns out positive, the employee will be required to attend the Employee Assistance Program (EAP) and if the employee refuses treatment, then termination will occur (Cihon & Castangera, 2016). The pre-employment drug testing policy requires employees to undergo drug tests (Cihon & Castangera, 2016). The policy requires applicants to voluntarily submit to urinalysis in a laboratory chosen by the company and sign a form that will exempt the organization from liability (Cihon & Castangera, 2016). An applicant with a positive drug result will be denied employment (Cihon & Castangera, 2016). The drug policies, however, put employers in a dilemma. Mello (2012) articulated that the Drug-Free Workplace Act has created a dilemma for employers who have employees that require medical marijuana for health purposes. In the case where an employee tests positive and is using medical marijuana, it is up to the employer to determine the implications according to state laws (Jennan, Michael, Debra, Gifford, Kathryn, Brett, Mark, and Marrianne (2015). This situation calls for a review of the state laws to allow for easy decision-making on the employer's part.

The Controlled Substance Act

Kurth (2015) stated that under the federal Controlled Substance Act (CSA), marijuana is still illegal. Gibbs (2019) indicated that the CSA established five schedules of controlled substances, with Schedule I substances defined as those which have a high potential for abuse. Schedule I substances do not have regulation ad cannot be prescribed by doctors or distributed in pharmacies as per the Food and Drug Administration (Prione, 2019). Under CSA's classification system, cannabis remains a Schedule I drug which is illegal to possess, use, cultivate, or sell (Gibbs, 2019). The CSA required that states considering adopting a policy to "reasonably accommodate medical marijuana use for the treatment of a known physical disability, mental disability, or medical condition" (Gibbs, 2019). After the CSA became effective, Congress created a National Commission on Marijuana & Drug Abuse to establish how marijuana affects the health of its users, the psychological effects, and its impact on crime and the use of other drugs (Gibbs, 2019). President Richard Nixon recommended that the possession of marijuana use for personal use should not be a felony and that the casual distribution of small amounts of marijuana should be reduced to a civil penalty (Barry et al., 2014). In 1972, the Commission released its findings, which went against the CSA's findings (Gibbs, 2019). The Commission rejected the CSA's findings to completely prohibit marijuana use (Gibbs, 2019). Instead, it recommended decriminalization (Gibbs, 2019). Despite those findings by the Commission, Congress rejected its findings and listed marijuana as a schedule 1 substance (Gibbs, 2019). By 1973, many states had begun to decriminalize marijuana (Gibbs, 2019). California, however, was the first state to pass the Compassionate Use Act in 1996, which allowed the medical use of marijuana (Lytle, 2019). Regulation instead of prohibition is more appropriate and should be included in the marijuana testing policies.

Maybin (2019) indicated that in 2014, Uruguay was the first country to legalize the sale and distribution of recreational marijuana. Even though the country legalized recreational marijuana, the country still faces the threat of strict U.S. marijuana policies (Maybin, 2019). In Uruguay, pharmacies are the only places allowed to sell recreational marijuana because of bank restrictions (Maybin, 2019). Uruguay's marijuana dealers partnered with U.S banks for their international transactions until the partnerships came under threat when America learned that they were receiving marijuana money (Maybin, 2019). In Uruguay, marijuana customers have to register with the regulators and are limited to buy 10 grams a week, which is equivalent to 20 joints (Maybin, 2019). The regulator is responsible for controlling the strength of the marijuana and the levels of THC (Maybin, 2019). The long queues in pharmacies and the presence of regulators suggests the supply is not meeting the demand.

Effects of Marijuana on Job Performance

There is limited substantial proof that marijuana use affects job performance. According to Comer (1994), research established that people in the military with no drug use were likely to be discharged from services after serving four and a half years. As the author added, drug-testing does not guarantee organization performance (Comer, 1994). The author emphasized that people have different reactions due to workplace stressors and it may not necessarily mean they are on drugs (Comer, 1994). The author emphasized that technology on urinalysis is not safe (Comer, 1994). Metabolites of marijuana can appear in the urine of a user long after he or she has ceased using the drug (Comer, 1994). Besides, urinalysis can detect the presence of marijuana use which is not from the drug itself, but from taking certain pills or eating particular foods (Comer, 1994). The aut...