Are Employers Permitted to Fire Stoned Employees?

Can businesses fire stoned employees?

marijuana plants

As Ayn Rand once said, the question is not, “Who is going to let me?”; it’s “Who is going to stop me?”

But strangely someone or something seems to be stopping employers as far as CNBC is concerned.

Stoners on the job: Nearly 10% of Americans went to work high.”

A new report has found nearly 1 in 10 Americans are showing up to work high on marijuana. Mashable.com conducted the survey in partnership with SurveyMonkey, and found 9.7 percent of Americans fessed up to smoking cannabis before showing up to the office.

The data analyzed the marijuana and prescription drug habits of 534 Americans. What’s more, nearly 81 percent said they scored their cannabis illegally, according to the survey.

[…]

According to separate data from Employers, a small-business insurance company, 10 percent of small businesses reported that employees showed up in 2013 under the influence of at least one controlled substance, with marijuana coming in at 5.1 percent.

Marijuana sales overall are taking off as recreational use of cannabis is legal in Colorado and Washington state, and pot can be purchased for medicinal use in 23 states and Washington, D.C.

So, obviously, if employers believe they are being robbed of productive work by these employees who come to the office or job site stoned, then they should fire them and hire non-drug users. Right?

The story does not give an unambiguous answer.

So what’s an employer to do?

Companies have different strategies and opinions on testing. But the vast majority of U.S. employers aren’t required to test for drugs. According to the U.S. Department of Labor, many state and local governments have statutes that “limit or prohibit workplace testing, unless required by state or Federal regulations for certain jobs.”

Why should governments step into the relationship between employer and employee? In fact, even calling them by the names, “employer and employee,” biases the discussion. They are two trading individuals, one offering his services and the other offering money.

[See also, “We Live in an Anti-Libertarian World.”]

If I as “an employee” decide I don’t like my boss because he uses drugs, should the state prohibit me from quitting? Then on what basis should it prohibit my employer from firing me if he or she learns that I use drugs (hypothetically speaking, of course).

Christopher Myers, co-founder of BodeTree, a 15-employee start-up based in Denver, says he has yet to create a policy strictly for marijuana use in the workplace.

As an online service that helps small businesses manage and understand their finances, BodeTree has to comply with financial institutions’ policies for protecting client data. Myers said there’s a zero tolerance policy when it comes to substance use on the job.

“It’s an interesting balance, because we need a policy that is compliant with federal and state law,” he said. “And we are respectful of those laws. But we don’t want someone showing up to work drunk, on Vicodin or high on marijuana.”

For now, Myers isn’t performing spot testing for marijuana consumption on employees.

“The testing technology in Denver will detect if you have been using marijuana in the past 30 days,” he said. “From a policy point of view, no one knows how to handle it.”

The implication here is that it would be illegal to fire someone for smoking marijuana within thirty days. Effectively, by decriminalizing marijuana, Colorado did not merely stop prohibiting it. Rather, it also criminalized any employer who wants drug-free employees.

So rather than increase freedom, legalizing pot actually increased coercion. Freedom was never even considered as a possibility.