Last week, I read the news that Sha’Carri Richardson, one of the favorites to win Olympic gold for the United States in the women’s 100-meter dash, was suspended for a month for testing positive for marijuana. As a management-side employment lawyer, I’ll admit that my initial reaction was that she broke the rules and deserved the discipline associated with the infraction.
Then, I thought to myself, that is a really dumb rule.
It turns out that I’m not the only person who had the same take.
In this article for Sports Illustrated, Michael Rosenberg read my mind:
Sha’Carri Richardson owned her mistake, which is good. She used marijuana, which is against World Anti-Doping Agency regulations, and now she will miss her chance to win the 100-meter dash at the Tokyo Olympics. There is no way around this. The rules are the rules.
Also, the rules are stupid.
If pot made a person run faster, Woody Harrelson would be Usain Bolt. There is no reason for marijuana to be on a banned-substance list. Drug testing in sports is complicated, but the principle behind it is pretty simple: It should be designed to keep athletes from using performance-enhancing drugs. That’s it. Marijuana is not performance-enhancing.
Dr. Scott Hadland, the incoming head of adolescent medicine at MassGeneral Hospital for Children and Harvard Medical School, shared a similar sentiment here in this opinion piece at USA Today.
Cannabis doesn’t help performance
Unlike the other prohibited substances like anabolic steroids and stimulants, cannabis is not performance-enhancing. In fact, cannabis use can cause deficits in coordination in the short-term that arguably could worsen performance.
Dr. Hadland also stressed that recreational marijuana use is little different than consuming an alcoholic beverage:
It seems unlikely, however, that cannabis use violates the spirit of sport, which the World Anti-Doping Agency defines as “the ethical pursuit of human excellence through the dedicated perfection of each athlete’s natural talents.” Use of a substance that causes little to no harm when used recreationally, infrequently, and safely in an adult’s private life does not, in my opinion, satisfy this criterion. At a minimum, we can argue that cannabis no more meets the Agency’s criteria than another substance that is conspicuously not prohibited: alcohol.
Recreational marijuana use is little different than having a beer or glass of wine. As a matter of law, this equivalence is a growing trend. Recreational marijuana is legal in 19 states, Washington, D.C., and Guam. And that number will only go up. Some states like Nevada and New Jersey have effectively banned employers from testing for marijuana as a condition of employment.
Your business probably doesn’t care if someone had a few drinks over the weekend. So, even in states where marijuana remains illegal, what harm does an employer face if an employee uses marijuana off-the-clock but reports to work unimpaired?
For these reasons, I generally discourage employers who are not subject to federal or state drug testing requirements to require marijuana tests when hiring unless there’s a legitimate business reason to do so. It’s one less expense and one less onboarding task to perform.
Does this make me somehow enlightened or progressive? Maybe 20 years ago, it would.
Today, I’m confident that I’m merely part of the majority who believe that testing for marijuana as a condition of initial or continued employment doesn’t make much sense.