It was not too long ago that one could expect to undergo drug screening prior to being hired. Screening almost always included a test for THC. But things have changed. Thanks to new attitudes and more than three dozen states legalizing cannabis to one extent or another, employers are less likely to screen. But that puts them in a tough position.
Imagine owning a company involved in an industry whose daily operations require using dangerous equipment. Drug screening wasn’t even a question 10 years ago. Today, you might not be so confident about screening for THC. After all, your state has legalized marijuana. If you screen and then refuse to hire based on a positive THC test, are you opening yourself to a discrimination suit?
Private vs. Public Employment
A fair number of the states that have legalized cannabis still allow private employers to establish and maintain their own drug screening policies. Take Utah, for example. Private sector employers are allowed to say no to marijuana both on the job and off.
The owners of Deseret Wellness in Park City, says Utah’s law did change slightly in early 2022. Lawmakers passed a new rule that bans discrimination by public sector employers against medical cannabis cardholders. As long as there are no safety issues involved, public-sector employers are forced to treat medical cannabis like any other prescription drug.
Meanwhile, California is set to apply a new anti-discrimination law to all employers in the state beginning in 2024. When their new law goes live, employers will not even be able to ask about marijuana or THC. They won’t be able to test for it either.
The Ever-Present Liability Issue
Anti-discrimination laws in Utah and California seem pretty straightforward. But there is an ever-present issue that constantly gnaws at the minds of business owners: liability. There is always the threat of a huge lawsuit when something goes wrong in the workplace.
Imagine an employer who doesn’t know one of his workers uses cannabis. Imagine that worker is impaired enough to have a serious accident on the job. The employer could be subject to a personal injury lawsuit based on the ridiculous claim that he should have known his work could have been high.
The same risks apply in a medical situation. Let us say a worker is open and honest about possessing a medical cannabis card. However, the worker doesn’t tell his employer that his THC-heavy tincture gives him a buzz. Dosing up at work puts him at risk when using heavy equipment. If he has an accident, will he sue the employer?
Promises Aren’t Good Enough
Cannabis users are quick to promise that they would never do that sort of thing. Pro-cannabis advocates chime in by saying such lawsuits are rare. But promises are not good enough. Neither are statistics on the number of cannabis-related lawsuits employers face. The risk remains either way.
Unfortunately, we live in a litigation-loving culture. We live at a time when personal injury lawyers behave more like vultures circling overhead until they find an accident victim. At the slightest hint of injury, they swoop in and make promises to secure millions for the victims.
Workplace accidents leave employers in a bad position even when they have nothing to do with them. It is too easy to convince jurors that a greedy employer acted in its own self-interests, ultimately creating the conditions that allowed the accident to happen. It all adds up to employers being caught between a rock and a hard place. Legalizing cannabis at the state level doesn’t make things any better for them.
