US drug testing - compliance, safety or morality?

December 4, 2004 2:42 PM

Consider the following: As an American, you visit Amsterdam and partake of the (legal) local smokeable delicacies. You return to the States, apply for a job, and obviously fail the drug test. What happens?

OK so my guess is that you would be denied the job, regardless of whether you could prove the circumstances. I suppose the root of the question is this: when a company requires drug testing, are they trying to screen out illegal behavior or what they consider immoral behavior? Are they allowed to do both of these?

posted by Who_Am_I to Law & Government (25 answers total)

I believe that in general they specifically state that they do not discriminate against former users, but do not wish to hire someone who is currently on drugs. I don't know that they care so much about illegality as competency. That said, the detection period for a single use of THC in urine is 48-72 hours . Not really an issue for most people, especially since they don't usually give you a cup while you're at the interview. It's scheduled seperately with a lab.
posted by hindmost at 2:56 PM on December 4, 2004

Most of the time, they are trying to limit their future liability.

For instance, if they find drugs or alcohol in your system for a drug test, they would not want you to drive their forklift because you have shown a willingness to take intoxicants. Therefore, you may be impaired moving machinary that could hurt you and/or other employees.

Additionally, they may feel employees who drink excessively or use narcotics are more likely to take sick days and/or cause future health probelms resulting in higher health insurance rates.

Not that these companies are right, but they may feel why take the risk when a similar candidate who is drug free is also available?
posted by ..ooOOoo....ooOOoo.. at 3:03 PM on December 4, 2004

So, the theoretical situation here is, you never smoke cannabis in the States, where it's illegal, but you make a couple visits to a hash bar in Amsterdam. OK.

One possible result is, if it's a simple urinalysis and you test positive, that you could ask to be re-tested after failing the first one. Unless you were a heavy, regular smoker you might well pee clean by the time the second test rolls around.

I am not a chemist (or a pot smoker these days, either) but it is my understanding that occasional smokers are usually clear after a few days; heavy, frequent smokers can test positive for weeks after their last "exposure."

If they don't allow re-testing, or if you've taken in too much THC to clear the metabolites out of your system in a few days, or if it's something more expensive, accurate and sensitive than the cheap urinalysis tests that most employers use, then probably the answer is, you lose. No job for you.

Why do employers do this? Companies that do drug testing (for all kinds of substances, not just pot) claim with some justification that they are trying to protect themselves from costly mistakes, on-the-job accidents, decreased productivity and increased health care/insurance costs. See the Department of Labor's Drug-Free Workplace site for a recitation of the party line here.

(Of course, by that cost-avoidance logic, companies should be declining to hire tobacco smokers or overweight people.)

Personal opinion: I think that there's some truth in employer concerns about the potential liability of employing a drug user, but frankly I also think that there is a very large premium placed on employing a certain "type," and people who use drugs don't generally fit into that ideal corporate mold.
posted by enrevanche at 3:06 PM on December 4, 2004

This is a great question.
posted by orange clock at 3:35 PM on December 4, 2004

As to the legality: full faith and credit (the constitutional clause that requires states to recognize eachother's laws, e.g. my CT driver's licence allows me to operate a motor vehicle in NY) does not extend to other countries. So the argument "But it was legal when/where I did it" doesn't really work. Also, skallas is right that laws regarding hiring/firing stipulate what an employter may not use as a reason, and in no way does it establish a burden of proof upon the employer.
posted by ChasFile at 3:41 PM on December 4, 2004

From what I understand, pot isn't legal in Amsterdam. Instead, in some situations, in small amounts and so on, it is decriminalised. The authorities turn a blind eye to it.
posted by skylar at 3:50 PM on December 4, 2004

and tax it.
posted by dabitch at 3:53 PM on December 4, 2004

In a similar question, it is still illegal for American citizens to purchase Cuban cigars even while outside their borders, even for consumption outside the borders of the US.
posted by Caviar at 3:56 PM on December 4, 2004

This discussion seem to be conflating a few separate issues:

1) Is it legal to have pot in your system if you smoked it in Amsterdam?
Answer: Sure. American laws talk about possessing drugs or taking drugs, not about past-tense actions. Smuggling drugs intact inside your body (e.g. heroin in your butt) is considered possession because the drugs haven't been used yet. Of course, you may be put under surveillance because proof that you have used drugs once probably constitutes probable cause to believe that you possess some, and the cops could get a warrant or wiretap against you. However, my guess is that most employers don't turn this info over to the cops, and the cops wouldn't bother pursuing a small-time user.

2) Is it legal to fire (or fail to hire) someone who has a great excuse for having pot in their system?
Answer: Sure. As skallas notes, Title VII only prohibits taking adverse action against an employee on the basis of his/her sex, race, color, religion, or national origin. Other federal statutes like the Americans with Disability Act or the Age Discrimination in Employment Act wouldn't apply here (note: addiction to pot is unlikely to receive an accomodation under the ADA, and according to these facts, you couldn't show addiction anyway). There are some state statutes (e.g. the DC Human Rights Act) that prohibit discrimination in employment on the basis of other traits (e.g. sexual orientation), but I don't know of any that would cover this behavior. Again, if the trait or behavior isn't explicitly protected, employers can do whatever they want.

3) Is an employer likely to punish you for a positive drug test?
Answer: That really depends on the particular employer. As noted in #2, they have discretion under the law.
posted by equipoise at 4:22 PM on December 4, 2004

Disclaimer: Good point, Caviar. Maybe there are specific laws designed to prevent drug use outside the USA, a la Cuban cigars, but I don't know of any.
posted by equipoise at 4:24 PM on December 4, 2004

but it is my understanding that occasional smokers are usually clear after a few days; heavy, frequent smokers can test positive for weeks after their last "exposure."

Not necessarily. From the (definitive) Drug Test FAQ:

If you use marijuana on rare occasions, your urine may be clean of metabolites in less than a week. There is a common and strange phenomena that occurs with chronic users. You would expect a chronic user to have the longest detection time and the smallest chance of passing. This is not always the case. A chronic user with a high tolerance will eliminate drugs quicker than an occasional user. Chronic users have tested negative after a week long binge. Lipid tissue also makes a huge difference. Skinny users not only have a faster metabolism (usually), but also lack storage for THC metabolites. Fat will cause a lag in excretion pattern, and lead to a longer detection time.

To answer the initial question: you won't get the job. Simple. Even disregarding the question of predication of future drug use for those who test positive, there is no way to prove you took the drugs in Amsterdam. Employers will err on the side of caution, and with a positive drug test, no one will question them.
posted by Civil_Disobedient at 4:38 PM on December 4, 2004

Response by poster: Excellent insights everyone, thanks.

What do you think would change if we altered the situation slightly: You are a Dutch citizen and you come to America (or anywhere else where marijuana is illegal) looking for work, again facing the drug test. I tend to agree with XQUZYPHYR that they just aren't going to hire you, but how do you rationalize this?

On preview: Civil_Disobedient: assume that you could prove the circumstances. I am not looking for the logistics, but rather the rationale.
posted by Who_Am_I at 4:49 PM on December 4, 2004

There's no way to rationalize it because the drug testing that goes on for most jobs in the United States has no rational justification.

The assumption is, if you use drugs, you're a risky hire. Period.
posted by alana at 5:21 PM on December 4, 2004

...actually, most of the time, when you're subjected to such a test, the assumption is that if you use *marijuana* you're a risky hire...or an immoral hire, or some other screwy idea coming from the people who mandated the tests. You won't be able to find a real justification for it; it's happening because there are some extremely stupid people who unfortunately have the power to make it happen.
posted by bingo at 6:23 PM on December 4, 2004

I tend to agree with XQUZYPHYR that they just aren't going to hire you, but how do you rationalize this?

Me, I don't. I think it's wrong.

But if you were having a conversation with a good, reasonable HR person, they'd probably say that drug-tests are a proxy. Drug use might correlate, if Lord knows very imperfectly, with qualities that employers want to avoid, but that are hard to observe in a candidate. So you look for drugs, which are easier to observe.

Which doesn't mean they're *correct* in doing so, only that it's likely what they're doing.
posted by ROU_Xenophobe at 6:24 PM on December 4, 2004

The specific quality they're testing for (or at least think they're testing for) with a drug test is poor judgment.
posted by kindall at 7:01 PM on December 4, 2004

You know, at the risk of getting flamed for not reading this thread, I'm gonna suggest that anyone worried about whether they are still excreting THC into their system go to their own doctor first and pay for a drug screen. I've done them for patients on their dime.
posted by docpops at 7:02 PM on December 4, 2004

I have started and run 3 companies to date. In each, the policy was "no drugs". There was no moral judgement or even insurance related risk factors involved in the decision. Rather, it had to do with trying to maintain a standard of conduct in a workplace where the employees were paid to make judgement calls many times a day. Those calls were related to safety while in charge of dangerous equipment, quality of product (sequential quality control at each stage of production) and coordination of complex tasks among a group.

If one person were to light up, that would imply that any or all could do so. Then the argument between the members of the production team would be "how stoned is too stoned". Obviously this is not quantifiable, and would lead to interminable arguments. It is far more fair to have a policy of zero tolerance.

Having established such a policy, it would make little difference whether the "lighting up" occurred on or off premises. The only practical way to ensure that the policy is being followed is to test. My companies always did random sampling for both drugs and alcohol. I found that it showed that I was serious about it and it gave everyone a measure of confidence that drugs and alcohol impairment were one less thing they had to worry about.

This same policy was enforced for every employee from the CEO down.

It is worth noting that one employee developed alcohol dependency during her term of employment. The company paid for treatment and counseling, which failed to help and after many months and warnings, she was fired. There followed an outpouring of gratitude from the other employees, both about the attempts to help and the final resolution.
posted by RMALCOLM at 7:31 PM on December 4, 2004

RMALCOLM, nobody is saying that it should be okay to do drugs on the job. Those tests find THC in the blood days after pot was smoked. So, what you're showing is that you're serious about finding out whether the employee in question has recreationally used marijuana at any time during the last several days, whether that person was under the influence at work or not.

Besides, when you say that you 'did random samplings for both drugs and alcohol,' are you saying that you tested for anything at all besides THC? Did you also test for heroin, LSD, and cocaine?

Let's be realistic. The policy at most companies is 'no drugs,' just as it's also 'no handguns' and 'no sex on the desks.' That doesn't mean that it's necessary, or appropriate, or a good idea from a morale point of view, to have everyone walk through metal detectors, work under constant surveilance, and pass bodily fluids for inspection.

Surely, this person who 'developed alcohol dependency' had problems that manifested at work, whether she was actually showing up drunk, or merely too hung over to work...right? The other employees didn't engage in an 'outpouring of gratitude' because someone who was competent and a peach to work with failed her piss test and then was fired when, after treatment, she was found to fail it again months later.
posted by bingo at 8:16 PM on December 4, 2004

You know, honesty may be the best policy. I remember that when I took a drug test, they asked whether I had been taking any prescription drugs, etc., that may show on the test. I told them that I was in fact on a prescription, and they tested me twice, once a few months after being off the prescription.

You could try the same thing, only report the pot. I know of people who have truthfully admitted drug use and still gotten government securtiy clearances. The most important thing is to be up front, in my view.
posted by Doohickie at 8:18 PM on December 4, 2004

Is using the drugs tested for in a drug screen illegal? Yes. Do employeers want to avoid paying people who actively engage in illegal activity? Yes. Whether or not you agree with the illegality of certain drugs, companies don't want to hire someone, much less keep them in their employ, when they are engaging in criminal activities.
posted by Apoch at 8:48 PM on December 4, 2004

Those tests find THC in the blood days after pot was smoked. So, what you're showing is that you're serious about finding out whether the employee in question has recreationally used marijuana at any time during the last several days, whether that person was under the influence at work or not.


Discovering impairment from THC, etc. is not a simple task, as researchers will tell you. The motive for random testing was to demonstrate that on the job impairment was not tolerated. As it happens, the testing became more and more sensitive over time and came to detect 2 and 3 day old recreational users as well as those whose use was almost contemporary with the test. Had an employee declared that they had used pot 2 days prior on a weekend, and the levels of THC detected bore this out, then I would not have taken any action against them.

Did you also test for heroin, LSD, and cocaine?


We tested for THC, cocaine, amphetamines, some designer drugs and alcohol.

That doesn't mean that it's necessary, or appropriate, or a good idea from a morale point of view, to have everyone walk through metal detectors, work under constant surveillance, and pass bodily fluids for inspection.


As I recall, we selected 2 people at random every 90 days, so it was not like having metal detectors. The communities in question had high rates of drug and alcohol problems, with the result that it was a serious concern among most employers.

Surely, this person who 'developed alcohol dependency' had problems that manifested at work, whether she was actually showing up drunk, or merely too hung over to work...right?

Initially, she was a very good worker. Yes, as a result of personal problems, she took to drink and did frequently show up very hung over and unable to perform her job satisfactorily. She had been well liked by co-workers, but this changed as she dragged the performance of the team down.

We decided to help her because we had seen what she was capable of and believed that, sober, she brought a lot to the company. When that did not prove to be the case, we had no recourse but to let her go. I believe that the relief shown by the others was because they could see no positive outcome to this downward spiraling situation and so felt it was better to end it swiftly. Her disturbances were bringing the quality and the morale down and the others wanted those restored.

Bingo, my reason for bringing up those experiences was to show that more often than not, employers are faced with very difficult situations that do not have tidy solutions. Most employers I know go to great lengths to train their employees well, help them through difficult times and foster a high morale. That is not altruistic. It is the best business practice. Those same managers are way too busy to care about the daily lives and moral decisions of large numbers of employees. It is just not possible to keep track of them to that extent. Rather, the issue we are discussing is just the most practical and equable way of dealing with a very touchy subject and getting on with the job.
posted by RMALCOLM at 8:59 PM on December 4, 2004

It is just not possible to keep track of them to that extent. Rather, the issue we are discussing is just the most practical and equable way of dealing with a very touchy subject and getting on with the job.

That sounds almost like you're saying that you don't have the resources to tell whether they're actually doing their jobs, so you make an educated guess based on whether or not they test positive for narcotics.
posted by bingo at 11:05 PM on December 4, 2004

The specific quality they're testing for (or at least think they're testing for) with a drug test is poor judgment.

I think kindall nailed it. If you can't refrain from doing drugs for x length of time before a pre-employment drug screen that you know is coming, then odds are good your poor judgment is reflected in other areas as well.

If you can't put the drugs down during a job search, and you know that doing so is critical to get a job, then you have what is known as a drug problem.
posted by beth at 12:30 AM on December 5, 2004

From what I understand, pot isn't legal in Amsterdam. Instead, in some situations, in small amounts and so on, it is decriminalised. The authorities turn a blind eye to it.

This is OT to the original question, but just as an FYI - I don't know if pot is technically legal here in Amsterdam or just decriminalised, but it's pretty much a moot point. It's not something you have to buy under the counter or anything - it's freely available in shops which are licenced to sell it. The shops which sell it are regulated by the authorities in various ways, they pay taxes and so on, so it's really more mainstream than skylar's post suggested.
/derail
posted by different at 8:36 AM on December 5, 2004