Presumption of vocational impairment
December 8, 2012
Per this article, the question of private employers dealing with off-hours behavior deemed legal by the State.
Gee… If we only had some way to determine if users of marijuana are likely to be vocationally impaired. If only there were some way to get that information. So that we could come up with some guidelines. And do things based on reasonable approximations of fact rather than agenda based random reaction (on either side).
Wouldn’t that be useful?
What? What’s that you say?
“Science”?
DrugMonkey 
December 8, 2012 at 1:25 pm
There are multiple distinct questions that a drug test can answer:
1) Does this employee do things that violate federal law? For jobs with legal and security issues, that is a perfectly valid question to ask, and it is an easy one to answer: Any detectable level (above whatever trace background a non-user might have from being in the audience at a concert) would be evidence of misconduct. If* behavior in violation of federal law is justifiable grounds for firing, fire away.
2) Is this employee in a state that will impair performance at work? For that, the question is not “Do they have even a trace amount?” it is “Does the amount currently in their bloodstream have a substantial negative impact on their ability to do the job?” And ascertaining that level is a task for science.
The threshold for question 2 is presumably higher than the threshold for question 1.
*I will defer to experts on employment law to determine when that “if” statement applies.
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December 8, 2012 at 1:36 pm
There are even more things going on. There are tobacco-free workplaces where if employees are tobacco users at home, they will be fired. Hostess going bankrupt precluded the twinkie-free workplace, but behaviors deemed unhealthy are going to be the next frontier. Places I am talking about that I know of are health care chains, where employees are likely forced to be on hospital-chain insurance, so since the employer is also the insurance company, they will discriminate to directly save money on coverage.
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December 8, 2012 at 4:32 pm
It will indeed be interesting if private third parties (employers) get drawn into the Federal/State debate on this. I would hope, nevertheless that any ultimate adjudication includes a few scientific studies. Too much to hope for?
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December 8, 2012 at 5:29 pm
If the question is “Should people lose their job because a test shows that they violated the law?” then the only real place for science to have input is on determining the sensitivity of the test, and what sorts of factors might lead to false positives.
Neuroscience, behavioral science, etc. would seem to be relevant to the question “Does this result on a test indicate impairment?”
My suspicion is that as long as businesses are focused on the federal/state debate, their duties under the law, and drug free workplace standards for federal contracts and whatnot, the impairment issue (where neuroscience might weigh in) will get short shrift. If you’re trying to cover your ass, one tends not to ask “What would indicate whether people can do their job well?” and instead tends to ask “How can I demonstrate compliance with rules?” If a hair test (or whatever) indicates that you toked up last month, who cares that you aren’t impaired at work today? You still broke a rule. For legal and ass-covering issues, that broken rule is what counts.
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December 8, 2012 at 5:53 pm
I’ve sparked uppe thousands of doobies, and that shitte has never impaired my professional capacities.
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December 8, 2012 at 5:55 pm
But does your workplace test you? I assume they don’t care. Tends to be your big company hourly wage jobs that test, no?
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December 8, 2012 at 5:55 pm
When one’s job involves writing articles and proposals, is competent spelling part of one’s professional capacity?
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December 8, 2012 at 6:03 pm
“The Seattle police department is reviewing its policies on drug use by officers or prospective officers, spokesman Sgt. Sean Whitcomb said, adding that it’s unlikely off-duty officers will be allowed to use pot. The department might ease its requirement that applicants not have used marijuana in the previous three years. ”
Police officers are more likeley to have used cannabis than the general public, and are far more likely to have been involved in dealing the drug.
” I would hope, nevertheless that any ultimate adjudication includes a few scientific studies. Too much to hope for?”
Yes, we need science to legitimize our thuggery, always helps.
“If the question is “Should people lose their job because a test shows that they violated the law?””
yeah, a nice simple philosophy, but the ugliness comes in when you consider that we can’t tell by a test if someone committed a rape or beat their kids, or even if they were roaring drunk and risked other peoples’ lives by driving home Saturday night. We can only detect an action that the same prosecuting government has determined should not be illegal. This is fucked up, people.
But please, do continue this fascinating intellectual debate.
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December 8, 2012 at 6:11 pm
I had to take a drug test so I could serve wine in a tasting room. After enjoying the wine visitors got into their cars and drove off. No one tested them. Please explain.
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December 8, 2012 at 6:14 pm
Oh, and I was told about the test in advance. So the only drug that would be detected would be cannabis. I complained, and they sheepishly apologized and said they would have to pay sky high workers comp rates if they didn’t demand the tests.
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December 8, 2012 at 6:23 pm
Isabel, I don’t think those laws should be in place, and I don’t think that violating them should be a firing offense. In fact, I think that a criminal past should usually be forgiven after some interval, to ensure that people with troubled pasts have lawful ways of being productive. We’re much better off if people can find legitimate ways to earn a living.
My only point is that as long as those rules are in place, they are pretty cut-and-dried, and there isn’t much for science to say for or against them. States can say what they want, but if federal laws and regulations obligate a federal contractor to test employees, then the question of whether low levels of drugs in the bloodstream lead to impairment is basically irrelevant. Even if low levels of drugs DON’T lead to impairment (a hypothesis that you probably find plausible) that fact is completely irrelevant to the legal situation that we’re in.
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December 8, 2012 at 6:24 pm
In fact, Isabel, a lot of the things that you are opposed to (and, for the record, I oppose them too) are driven by legal and political considerations, not genuine scientific or health considerations.
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December 8, 2012 at 7:05 pm
Thanks. I was born yesterday, after all.
MY ENTIRE MESSAGE is summed up by your last comment.
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December 10, 2012 at 7:15 am
Good ol’ Isabel. Take gun. Shoot anyone who dares to be sympathetic. Repeat.
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December 10, 2012 at 9:21 am
I can’t say a single person has ever expressed sympathy for my point of view here. Not a one. Who agrees with me that the drug war is our #1 domestic crisis? Do you, Grumble?
Workplace drug testing for off-duty drug use is unreasonable search and seizure. The employers may be private, but the pressure is from the Feds.
It is ridiculous, a horrifying sign of how sick our society is, to have an academic debate about the particulars.
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December 10, 2012 at 9:28 am
And that people are being tested for something that the government has concluded should be legal, that there is no justification for prohibition, makes this all even sicker. But DM is ready to go along with it. He just wants more testing; he needs scientific evidence that workers can pour wine safely after using cannabis during their off hours. Then he will be satisfied that science has not been ignored! Yes, this is his main concern.
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December 10, 2012 at 9:42 am
In fact, all testing of bodily fluids of people who have not shown signs of impairment is unreasonable search and seizure.
One of the goals of the “third way” is to involve doctors more in the process. At some point, we have to take a stand and stop going along with the whole program, don’t you agree?
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December 10, 2012 at 9:56 am
I believe that the drug war is counter-productive, harmful, and should be stopped (especially the focus on marijuana), but no, I don’t believe that it is our #1 domestic crisis. I think it would be difficult to find anyone willing to toe your line more closely than that. But I’ve had this argument with you before, Isabel, and clearly my sympathy wasn’t enough then, and I’m sure it’s not enough now. Not that I give a crap – but I do find your demands for absolute fealty to the Isabel Party Line to be quite hilarious. An apoplectic little blogospheric anti-anti-drug Stalin who is reliably just about as self-defeating as the drug war itself – what could be better? Pass me the popcorn.
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December 10, 2012 at 10:02 am
I can’t say a single person has ever expressed sympathy for my point of view here. Not a one. Who agrees with me that the drug war is our #1 domestic crisis?
I do.
My only point in discussing the issue of impairment vs. legality was to predict that most of the companies examining this issue will NOT focus on actual impairment issues, but rather on legality. I further noted that, as long as the issue on the table is legal and regulatory compliance, what they are doing is entirely rational (in the self-interested sense) and this will probably preclude a thoughtful examination of impairment issues.
And you seemed bothered by it.
Isabel, I don’t know what your stance is on gun control, but you do seem to be very much in favor of friendly fire incidents.* Chill out. If you need help relaxing, go to Seattle.
*That was intended as a metaphor, not a literal statement.
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December 10, 2012 at 11:15 am
I really don’t see your point Alex. Why wouldn’t discussing the lack of usefulness of the tests influence decisions at this time of great flux in regulations and prosecutions? We should be discussing this constantly and protesting loudly about the very existence of these tests. Why isn’t it considered a good political move to push for the end of drug testing, since most voters support this view? And why do you stress that the companies are being “entirely rational”? You may paint me as un unpleasant radical, but if everyone was like me we would never have gotten to this point.
“but you do seem to be very much in favor of friendly fire incidents.*” I don’t have any idea what this metaphor means. maybe *you* need to chill out. Your comment above was condescending, and I didn’t appreciate it and said so, so what? Now you are complaining about my lack of appreciation? Why do people act like I should be looking for allies who show any sign of agreement with me? Tons of people think pot should be legal. But here we find ourselves……if people consider my views or attitude too radical than they *don’t* agree with me. My view is not simply that cannabis should be legal- it is that we are living through a completely insane and oppressive situation that we should be fighting back against a lot more actively than we are.
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December 10, 2012 at 11:21 am
” but no, I don’t believe that it is our #1 domestic crisis”
really, Grumble? Where would you rank it? What issues are more pressing, in your view?
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December 10, 2012 at 12:32 pm
# 1 domestic crisis, infrastructure. unemployment/underployment would also be up there pretty high. certainly not your drug war domestic crisis fallacy.
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December 10, 2012 at 4:23 pm
Global warming. You might argue it’s not a “domestic” crisis, given the word “global”, but the US has been responsible for the vast majority of greenhouse gas pollution. So something drastic needs to be done, domestically.
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December 11, 2012 at 7:51 am
Something about people arrested, people in jail…it just doesn’t resonate with you people. So what if more people are imprisoned in the US than any other country, including China. That more Americans are imprisoned today for drug offenses than were imprisoned for all offenses in 1980. So what if we arrest 800,000 people a year, mostly young, black and hispanic, for something the government itself has determined should actually be legal, and then deny them apartments and student loans and force them to undergo invasive tests. So what if law enforcement has been completely corrupted, that neighboring countries are suffering from out of control violent cartels? And the over 20 billion/year we spend on all this- who cares about that shit? It’s not like we need it to repair our infrastructure. We have real problems, like unemployment and global warming to worry about!
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December 14, 2012 at 5:37 pm
Op-ed: It’s time for employers to rethink marijuana, drug-testing policies
http://seattletimes.com/html/opinion/2019899043_paularmentanoopedxml.html
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