Legal Marijuana and Workplace Drug Testing

Whether you are using marijuana for medical use or recreational purposes, it is important to understand its potential effects on your employment status. Despite the legalization of marijuana in many states, employees can still face legal consequences.

Losing your job because of legal marijuana use can feel unfair and overwhelming, particularly if you have never been impaired at work. Although multiple states offer employment protections for users of medical cannabis or recreational marijuana, federal law still classifies cannabis as a controlled substance.

If you are facing potential job loss or discrimination due to legal use of marijuana, contact an employment law attorney in your area. They can help you understand your legal protections and advocate for your rights.

This article outlines what you need to know about marijuana use and workplace drug testing.

Understanding Pre-Employment Drug Testing

Employers generally have free rein to screen prospective employees and maintain a drug-free workplace. However, when doing so, employers should follow certain protocols:

• Inform job applicants about the drug screening before testing
• Apply drug testing policies equally to all employees
• Follow state-specific regulations regarding testing procedures

While you can refuse a drug test, this may result in not getting hired or job termination. Many states have laws that regulate pre-employment drug testing. These laws vary significantly from state to state.

Drug Testing Methods and Detection Windows

Most employers use urine tests to screen for five or six substances, including THC, the active compound in marijuana. Drug tests can detect THC in urine for up to four weeks after use. This means occasional cannabis users are much more likely to test positive than people who use alcohol or other substances that leave the system faster.

Saliva tests offer a shorter detection window. They often detect usage over the past 24 to 48 hours and may better indicate recent use. It makes them a more accurate proxy for potential impairment. THC is often detectable in blood tests up until a week after last use.

It is important to note that none of these drug testing methods can definitively determine a person’s current impairment. It can only detect the past usage of marijuana or other controlled substances.

What Rights Do You Have During Pre-Employment Drug Testing?

During a pre-employment drug test, there are several important rights that you should be aware of.

• Advance notification: Your employer should inform you about their pre-employment drug testing policy. They should let you know before they administer the drug test. This notice is often given in writing.
• Privacy of medical information: Your test results are protected health information under federal regulations. Testing facilities and employers must maintain strict confidentiality. They should only share the drug test result with your employer and authorized personnel.
• Opportunity to discuss the drug test result: If you received a positive result, you can speak with a Medical Review Officer. The officer can explain the possible reasons for the positive drug test.
• Protection from discrimination: The Americans with Disabilities Act (ADA) protects individuals from discrimination based on their history of substance abuse or past participation in rehabilitation programs. These protections ensure that your employer evaluates you based on your employment qualifications rather than your history.

Your rights may vary depending on your state law. To learn more, consult an employment law attorney who has experience handling drug testing issues.

How Do State Laws Protect Medical Marijuana Patients in the Workplace?

Protection varies significantly in every state. In many states, such as Colorado, where marijuana is legal, employees and job seekers often have no job protections for cannabis use. This applies even when a doctor recommends it.

However, several states with medical and recreational marijuana programs do offer some form of job protection. These states include:

• Arizona
• Arkansas
• California
• Connecticut
• Delaware
• Illinois
• Maine
• Maryland
• Minnesota
• Missouri
• Montana
• Nevada
• New Jersey
• New Mexico
• New York
• Oklahoma
• Pennsylvania
• Rhode Island
• South Dakota
• Virginia
• West Virginia

In Connecticut, employers cannot refuse to hire someone just because they are a qualified medical marijuana patient. Arizona law prohibits discrimination based on a medical marijuana patient’s positive THC test.

Other states, such as Massachusetts, require employers to make reasonable accommodations for medical marijuana users. However, these protections typically do not apply when the employer follows federal regulations.

In Minnesota, employers cannot withdraw a job offer based only on an initial positive drug screening result. The result needs to be confirmed by secondary testing to be valid. Offers also cannot be withdrawn based only on the presence of THC on a drug test.

On the other hand, the Michigan Court of Appeals determined in 2019 that employers retain the right to withdraw employment offers following positive THC results. This right exists even when applicants possess a valid medical marijuana certification.

The court’s ruling established that Michigan’s Medical Marijuana Act did not create special protections for medical cannabis patients. Thus, they allow employers to maintain their drug workplace policies. The policies can stay in place regardless of the legal status of medical marijuana in the state.

Federal Limitations on Medical Marijuana Accommodations

Some state laws require employers to make reasonable accommodations for registered medical marijuana patients. This means employers may need to modify drug-free workplace policies to allow for an employee’s medical marijuana use during off-duty hours.

However, these state-level protections have important limitations, particularly regarding federal obligations. When employers operate under federal regulations prohibiting cannabis use, federal requirements typically override state-level protections. This applies to:

• Federal contractors and grantees are bound by the Drug-Free Workplace Act of 1988
• Transportation companies regulated by the Department of Transportation
• Companies with safety-sensitive positions regulated by federal agencies like OSHA

In these cases, employers can legally refuse to accommodate medical marijuana use.

Courts have generally upheld an employer’s right to comply with federal law even when it conflicts with state medical marijuana protections. This creates a two-tier system where your employment rights as a medical marijuana patient depend not just on your state. It also depends on your employer’s relationship with the federal government.

Frequently Asked Questions About Marijuana and Workplace Drug Testing

The following are some of the most frequently asked questions about workplace drug testing and marijuana laws. This can help you understand your rights as an employee or job applicant.

Do I have to tell my employer I use medical marijuana?

Generally, you are not required to disclose your medical marijuana use to your employer. An exception applies, however, if you work in a safety-sensitive position or if you are seeking an accommodation.

If you know cannabis will probably appear on your drug test, it may be best to talk to your employer about your status as a medical marijuana user.

Can employers test for marijuana in states where it is legal?

Yes. Even in states where marijuana is legal, employers can still test for marijuana and take adverse employment actions if you test positive. This is because federal law still classifies marijuana as a Schedule I controlled substance. Employers can make employee drug testing mandatory for safety-sensitive jobs, such as commercial drivers and heavy equipment operators.

Some states enacted certain employment protections for medical marijuana users. However, the state laws and rules vary widely. For instance, some states prohibit employers from firing employees solely for off-duty marijuana use. Meanwhile, others only protect registered medical marijuana users.

Due to these varying rules, it is best to consult an employment attorney if you think your employer has violated the law. They can give you legal advice, particularly tailored to your case, based on the state law that applies.

Need Help With Legal Marijuana and Workplace Drug Testing?

As more states legalize the use of cannabis for medical or recreational use, more employers are starting to reevaluate their drug testing requirements. Some private employers stopped testing for THC or marijuana and dropped it as a requirement for pre-employment screening. However, for safety-sensitive positions, drug testing programs are still in effect to maintain workplace safety.

If you have questions or need to file a claim related to workplace drug testing and marijuana use, consider talking to an employment law attorney in your area. They can help you understand your specific rights under current state and federal laws.