That right extends not only to government employees, but to employees in private industry as well.California courts have held that this right is implicated by drug testing, but that doesn’t always mean drug testing is illegal.
Good intentions can’t wish away the role of incentives in the development and distribution of life-saving medicines.Yet curiously the panel came to focus on IP, as its final report concedes.It’s curious because the same report recognizes that “medical innovation has dramatically improved the lives of millions of people across the globe” and says that incentives are key driver of innovation.State law requires users to get a doctor’s written authorization to use marijuana.A patient who has a valid prescription may not be prosecuted under state law for crimes relating to the use, possession, or cultivation of a certain amount of marijuana.California has recognized that employees start with a stronger claim here: Employees already have a job (and a work history the employer can use to evaluate their performance), which gives them more of a stake in the process and may give the employer less of a need to test.
An employer that has a reasonable suspicion that an employee is using drugs may be on safe legal ground in testing, provided that the suspicion is based on objective facts.
Weakening intellectual property rules, including tougher patentability requirements, controlled pricing, and compulsory licensing, challenges the root of the whole global patent system whereby patent holders are given monopoly power for a certain period of time.
The panel puts into question whether the patent-holder should be allowed that period of time at all, preferring, in its “seen” versus “unseen” fallacy, that everyone have immediate access to cheap drugs without properly considering the impact on incentives and innovation.
However, California’s Supreme Court has held that an employer may refuse to hire an applicant who tests positive for marijuana, even if the drug is legally prescribed for a disability.
When determining whether a drug test was legal, California courts balance the employer’s reason for testing against the employee’s legitimate expectation of privacy.
Because of the balancing test courts apply to drug tests, however, employers are more likely to prevail if they take steps to diminish employees’ privacy expectations (for example, by adopting a written policy explaining when drug testing will be required).