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Marijuana and Employment Drug Testing

Marijuana is legal for medical and recreational use in some U.S. states. However, testing positive for it when an employer drug tests you can be an issue, whether you are a job applicant or an employee.

The legal use of marijuana medically or recreationally varies from state to state. However, it is still considered illegal under federal law. In thirty-three states, the District of Columbia, and the territories of Guam and Puerto Rico, it is legal for those dealing with constant pain or certain illnesses to legally use marijuana for medical reasons, as long as they carry a card showing they are a “certified patient.”  

To become a legal medical marijuana user, you need a recommendation or prescription from a doctor who is legally appointed by the state to prescribe medical marijuana. In eleven of those states (Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington) including the District of Columbia, cannabis can also be used recreationally.   These evolving laws regarding marijuana use create challenges for lawmakers and employers who test applicants and employees for drug use.

Federal and State Drug Testing Laws

Under federal law, cannabis use is illegal, and employers in industries that are heavily regulated by the federal government screen their employees randomly and include drug testing as part of their hiring process.  

For non-federally regulated employers, federal law doesn’t require drug testing. However, there are state and local governments that enforce laws regulating drug testing.  

Employers have the legal right to maintain a drug- and alcohol-free work environment and are allowed to test applicants and employees as long as the employer clearly informs those applicants and employees of the company’s drug-testing policies, including pre-employment screening and random drug testing. In some cases, an offer of employment may be conditional pending the results of a drug test.  

These policies may be stated in the job description, but most often will be stated in a clearly written agreement within the application or employee handbook, which applicants and employees are required to agree to and sign in order to be hired or maintain employment. Some employers have a company policy that directly addresses marijuana use, while others do not.

When Companies Drug Test

How many companies conduct drug testing for marijuana use? SimplyHired surveyed over 700 hiring managers, asking whether the company conducts drug tests and what were their personal perceptions of employees who use marijuana:  

  • 55% of hiring managers report not performing marijuana drug tests on current employees, and nearly 40% of those who do say they do so less than in the past
  • In states where marijuana is fully legal, 58% of hiring managers say their company has a marijuana use policy
  • With companies that drug test, 50% do so after the job offer and 31% drug test after the interview

Most companies surveyed were accepting of marijuana use outside of work—only 17.7% would fire someone. However, 75% would most likely fire someone for using marijuana at work.

One important takeaway from the survey is that 68% of hiring managers said their company would be okay with marijuana use as long as they didn’t know about it. So, it’s always a good idea to keep what you do on your own time private.

Marijuana Drug Screening Issues

Drug screening for marijuana has become a debated topic in states where medical and/or recreational use is legal. The biggest difference between alcohol and cannabis is how they are detected through testing. Alcohol does not linger in the bloodstream like marijuana does.

Someone can fail a marijuana drug test weeks after using marijuana because the active ingredient, THC, takes a long time to leave the bloodstream. A positive test does not mean the person is impaired at that moment. Instead, it just shows that they used marijuana within the last few weeks or so.  

On the other hand, there are on-the-spot tests like the breathalyzer to determine the alcohol level and subsequent impairment of an individual at that moment. This enables lawmakers to create laws regarding the consequences of having more than the legal limit of alcohol in your system.

The technology to test marijuana levels with such accuracy has yet to be created. Without the ability to do accurate on-the-spot testing, it is challenging to determine what a legal level (the lowest level that does not cause impairment) of THC would be. Therefore, any trace can be considered exceeding the legal limit.

Workplace Discrimination and Marijuana

When someone holding a medical marijuana card is fired from his or her job because of a positive drug test, he or she could be considered a victim of workplace discrimination. Without the ability to test for actual levels of THC at the specific time the test is being performed, a person who tests positive for THC may not be actively high.

Laws to reduce this type of workplace discrimination are being created to protect those using medical marijuana under the state’s medical marijuana program.

Some employers are required to test employees under federal law or highly regulated safety laws for jobs like truck drivers or pilots where there is a legitimate basis for firing an employee who fails a random drug test.  

If an employer does not have to adhere to federal laws or safety regulations, the employer must carefully determine and provide reasons for firing a medical marijuana user who fails a drug test.  

Some states, including Nevada and New York, for example, consider those who use cannabis for medical reasons as being legally disabled and have created laws taking this type of disability into consideration. These laws require employers to ”reasonably accommodate” the medical needs of an employee who is a certified patient holding a legal medical marijuana card.  

Also in Nevada, starting in 2020, employers cannot refuse to hire a job applicant (with some exceptions) for failing a marijuana screening test, making it the first state to pass such a law.  

In states where medical marijuana users are considered disabled, medical marijuana users cannot be legally fired because of a positive drug test. However, this only applies if the marijuana use does not keep the employee from doing his or her job, and does not affect the safety of the employee, other employees, the public, or anyone else in the workplace.

If you are a medical marijuana cardholder or someone who enjoys legalized recreational marijuana, research your state, your employer’s, or your future employer’s drug testing policy. You shouldn’t assume that, because you are exercising your legal right to use cannabis outside of the workplace, you are immune to the repercussions your employer may impose on you as the result of a drug test that comes back positive for THC.

The information contained in this article is not legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law.

Marijuana and employee and applicant drug testing, laws and regulations, medical and recreational use screening, and workplace discrimination issues.

Drug Testing in the Era of Medical Marijuana

Before the mid-1990s, marijuana was illegal across the United States for any purpose, medicinal or recreational. However, the current landscape is quite different. Today, 33 states, four inhabited U.S. territories, and Washington DC allow marijuana for medical use with the permission of a doctor, and an additional 11 states and DC allow for the use marijuana for recreational purposes.

In spite of these steps forward, many employers nationwide, from retail stores to investment banks, continue to drug test employees at all levels. For those who use marijuana legally, particularly for those who rely on low-THC strains of marijuana for things like pain relief, this can create serious issues in maintaining ongoing employment.

Company Policies and Laws

While the laws are changing, company policies often aren’t moving at the same speed. Many companies, both large and small, continue to outlaw the use of any illicit substance of any kind, including drugs like marijuana. These kinds of policies are based in history rather than need; other controlled substances, like oxycodone, are often allowed with an exemption provided by a doctor, but this isn’t always the case for marijuana.

The lengthy illegality of marijuana still colors perceptions in even progressive organization and it is consistently grouped into the same categories as more dangerous substances, like heroin or cocaine. As such, testing positive for any substance illegal on a federal level can lead to the loss of a job.

This is true in locations where marijuana is fully legal as well. Take Illinois, for example – the state recently passed legislation legalizing marijuana to take effect January 1st, 2020. However, there does not appear to be any movement regarding drug tests, as companies will still be permitted to set their own hiring and employment requirements so long as federal discrimination protections are not violated – including the acceptance or lack thereof of recreational drug users.

Doctor Approval and Drug Tests

As medical marijuana spreads, the involvement of doctors in supporting marijuana use is growing exponentially. In all states participating in the propagation of marijuana for health purposes, a doctor’s approval is required.

The reasons for approval can be flexible – some doctors who believe in marijuana use may provide access for something as simple as regular headaches or mild anxiety – but regardless, a licensed physician must make this call. As such, there is no reason why marijuana should be treated differently in any way than other prescriptions that may arise in a drug test, like the use of narcotic pain medication to treat injury or stimulants to address behavior challenges, like ADHD.

However, as many drug users have learned, whether recreational in states where the practice is legal or medicinally with proper approval, have learned, this isn’t always the case. Some companies will not accept a doctor’s note as an explanation for a positive drug test. While many users have assumed that marijuana use would be treated similarly to alcohol – generally legal when not consumed on company time – this is not always true, either.

A doctor’s note doesn’t carry weight all of the time, however, even for legal prescriptions for other medications. There are some jobs in which testing positive for substances like opiates, for example, results in a carte blanche dismissal, regardless of demonstrated medical need. Jobs like trucking that require a clear head on the road may not allow drugs in any capacity, and marijuana is generally included in this blanket ban.

Recreational vs. Medical Marijuana

Marijuana is very popular in the U.S., regardless of legality. Around 22% of the population has smoked at least once in the last month, making it far more widespread than any other drug that is illegal on the federal level. While some people who smoke regularly do ingest for medical purposes, others get high for the enjoyment.

While there’s nothing wrong with responsible use for medical or recreational purposes when legal, those who use medical marijuana sometimes feel as if recreational users complicate things, blurring the lines between necessity and a good time. So, many users wonder whether there is a way to differentiate between recreational and medical marijuana use on drug tests, particularly as the composition of common strains tends to vary.

Unfortunately, the answer is no. While it’s true that medical strains often have lower levels of THC – many medical users do not want to get high on a regular basis in order to feel better – standard drug tests do not screen at this level of detail. Most tests come back positive or not positive based on the presence of metabolites detected at specific levels, and there’s no way to tell definitively whether a prescription is involved by a test alone.

Timelines for Testing

Marijuana is known for its long detection window due to thow the drug is stored within fat cells within the body. For heavy users, this is a major downside, particularly for those who are tested regularly with no leniency at work. Timelines for testing as as follows:

  • Urine tests: one to three weeks
  • Blood tests: several hours
  • Saliva tests: one to four days
  • Hair tests: up to 90 days

Note that marijuana doesn’t stay in the body for very long after a single use, but someone who uses marijuana every day will likely test positive for weeks to months after quitting, depending on testing method.

Responsible Marijuana Use

States that have legalized marijuana have done so under the assumption that responsible use is possible, similar to the role of alcohol in popular culture, and this is certainly true. However, many workplaces still don’t acknowledge this, sticking with age-old operating procedures that aren’t in line with the evolving stance on marijuana in the U.S. As a result, testing positive can mean the loss of a job or a rescinded offer, creating problems for those who use marijuana for any purpose.

If a company is amenable to medical marijuana, always be prepared to present a prescription, similar to the treatment given to other legally prescribed drugs that may appear on a drug test. While asking too many questions about drug use in the job search process can raise red flags for hiring managers, disclosure at the drug testing stage is often to a candidate’s benefit.

Despite the growing normalcy of marijuana in the United States, it will take time for the full elimination of the stigma associated with use. As such, it’s always important to know where an employer stands before pursuing a position.

Drug Testing in the Era of Medical Marijuana Before the mid-1990s, marijuana was illegal across the United States for any purpose, medicinal or recreational. However, the current landscape is