Banned or Required, With Nothing In Between

In California, where a referendum legalized medical marijuana, the state legislature has now gone much further and passed a bill, AB 2279, that would force private employers to hire medical marijuana users except for “safety-sensitive” positions that employers can prove would “clearly” be highly risky.  In California, it seems, private employers are forced to personally condone everything that is legal, no matter how controversial it might be.  The idea that the government should just stay out of the matter and leave both private employers and medical marijuana users alone is apparently beyond the comprehension of most California legislators, who think that everything permitted must be made mandatory.

(Under the Constitution’s state-action doctrine, which says that the Constitution only restricts the government, not private institutions, even if the government can’t do something (like ban marijuana), that doesn’t mean that a private employer can’t (leaving the employer perfectly free to ban pot-users from its property).   In fact, when a private employer exercises its right not to hire someone who engages in a risky or controversial practice, it’s freedom of contract and an exercise of private property rights, even if the government can’t prohibit that practice.  As the Supreme Court observed in Truax v. Raich (1916), the fact that employment is at the will of the employer doesn’t mean that it’s at the will of the government).

I’ve actually long supported legalizing medical marijuana (and allowing the terminally ill to use experimental drugs), but only if people who take it do so at their own risk, without seeking to force their employers or other people to assume the risks and costs of what they put in their bodies.  Pot doesn’t exactly promote productivity and hard work.  And you can bet that any employer who hires a medical marijuana user who later gets into an accident will face lawsuits claiming it should have supervised the pot user better, or that federal laws banning marijuana trump the state law and thus allow lawsuits against the employer for hiring a known pot-user regardless of whether the employer was even negligent in supervising the pot-user.  If Governor Schwarzenegger doesn’t veto this bill, employers will be between a rock and a hard place.

The California Supreme Court earlier rejected by a 5-to-2 vote the argument that medical marijuana users should be able to force employers to hire them, but that decision will now be history if Schwarzenegger signs this bill.

Ironically, the California Supreme Court has itself contributed to the mindset that private employers must indulge everything not forbidden by state law, through past rulings allowing employees to sue private employers for violating unwritten, judicially-recognized “public policies” (the so-called “tort of wrongful termination in violation of public policy”) simply because the private employer did something that the state constitution forbade the government to do, like engaging in non-racial discrimination (even if the employer was so small that it was specifically exempted from state anti-discrimination statutes).

The ACLU, which has often taken aim at the “state action” doctrine, and has attacked the free speech rights of private employers and the property rights of small business owners (including defending rent control and property seizures), unfortunately supported and lobbied for the bill.  (I commented earlier on the ACLU’s hypocrisy on civil liberties issues, such as free speech, double jeopardy, and privacy rights).