Back in the good old days of the Drug War, laws were enacted to require drug testing of employees by employers. The twofold argument was fairly obvious and uncontroversial. If employees were using drugs, they were breaking the law. And if employees were using drugs, they were impaired in the performance of their job. Dr. Kevin Boehnke, a research prof at the University of Michigan medical school, argues that in light of the legality of medical marijuana, in particular, and gaps in the rationale, in general, the requirement that employees undergo drug testing is “absurd.”

Dr. Boehnke, ironically a cannabis researcher, suffers from fibromyalga, and uses cannabis to “manage his symptoms.” Nonetheless, when he was hired by Michigan, he was required to take a drug test. Crazy?

Cannabis byproducts can be detected in urine for weeks, but I did what I could: I immediately stopped taking my medicine, exercised frequently, drank water constantly. My test kept getting delayed, which was lucky in one sense: By the time I took it, I was clear. But I had gone two months without my only useful pain medication.

When the requirement for drug testing became law, and the norm, medical marijuana was not yet a “thing.” Despite the fact that its medicinal benefits were already well established, drug warriors denied its medical efficacy and so there was no exception for medical use. But we’ve finally come to recognize its array of salutary uses, despite its remaining a Schedule I drug, and 36 states have authorized its medical, if not recreational, use.

Yet, the laws mandating testing, Drug-Free Workplace Act of 1988 and the Drug-Free Schools and Communities Act Amendment of 1989, have not been amended to recognize an exception for prescription medical use, if not “over-the-counter” pain relief. Does it make any sense to deny lawfully prescribed medication to someone suffering from, say, fibromyalgia to be clean for an onboarding drug test? If anything, it seems quite harmful to the health of employees.

To except prescribed medical usage would be an obvious fix to the law. Yet it not only hasn’t happened, but there’s been little pushback despite the breadth of medical marijuana usage. Of course, the counterargument is that it would impair the employer’s ability to ascertain if its new employee who used pot for fibromyalgia was also stoned during class or using dangerous machinery. These two things are not mutually exclusive. Yet, weighing the cost of denying medical treatment to the possibility of abuse, the former seems to overwhelm the latter.

And for what? All the test showed was that I had avoided cannabis and other drugs during the preceding weeks. I could have partied for the rest of the year, and no one would have been the wiser.

This argument, while perhaps accurate, gives rise to an argument for random drug testing throughout the course of employment rather than, as Dr. Boehnke argues, the elimination of testing. Would it be fine if he was doing his research stoned? Should profs be allowed to teach while high. Okay, bad example, but you get the point. There are fair reasons for an employer to want its employees not to be high, drunk or otherwise impaired while performing the work for which they’re being paid. And if that’s what the employer wants of its personnel, and staff like Dr. Boehnke think it dumb or wrong, they can always learn to code, right?

Cannabis can, of course, get you high, which affects attention, memory and learning. So just like most employees aren’t allowed to drink alcohol on the job, it makes sense that most employers don’t want people using cannabis while they’re working. The problem is that job-site drug screening captures usage only in the recent past. It does not assess current impairment or predict whether an employee may be a future safety risk.

This is also true, and yet the argument leads to even more stringent requirements. Maybe profs should blow into a breathalyzer before class?  If it’s not wrong for employers to want their employees to be at their best, or at least not their worst, on the job, then the elimination of some safeguards as they are inadequate or imperfect for all potential risks doesn’t militate against them, but for them, and additional precautions.

But indulging in bad arguments doesn’t mean there aren’t good arguments as well.

Further, many other substances, including prescription medicines such as opioids, benzodiazepines and antidepressants, can also cause impairment. As long as you have a prescription, an employer can’t penalize you for taking benzos. Why should it be different for medical cannabis? As for those using it recreationally, unless they are showing up to work high or impaired, does it matter?

Even CBD products, which can’t get you high and aren’t controlled substances, may contain a compound that can trigger a positive urine drug screen.

Everybody knows of the old poppy bagel claims, but the point is that the ability to distinguish between prescription drugs and unlawful drugs either exists or, with some minor effort, could be accomplished. Of course, Dr. Boehnke takes a curious left by throwing recreational drugs into the mix. It’s not that he’s conceptually wrong that employers have no reason to concern themselves with what an employee does on his own time as long as it he doesn’t bring it to work, but it raises different concerns that muddy his point about medicinal use of cannabis.

Since there’s no genuine safety or legal reason to keep doing this, isn’t it time we let new hires urinate in peace?

That some employers take drug testing more seriously than others, and that the law doesn’t require drug testing for some federal employees, doesn’t mean there is “no genuine safety or legal reason” for drug testing. But then, laws written at the height of the Drug War could stand some serious refinement to accommodate the realities of current medical uses of cannabis.