Are You in the Weeds on Marijuana Drug Testing?

April 12, 20215 min readBy Amir Lahoud

What do the new drug testing rules and long-term marijuana users have in common? Confusion, paranoia, and poor judgments! ^{^[i]} ^{^[ii]}

Remember when drug and alcohol policies in the workplace used to be cut and dried? A candidate or employee’s positive test meant refusal, dismissal, or a last-chance rehab at the employer’s discretion. Now, with newly legal pot-friendly states popping up every month, hiring managers are confused and worried about how to uphold drug and privacy policies amid changing federal, state, and local laws.

They wonder:

Can I drug test new hires? Will I be breaking federal law by not having a drug-testing program? My business is in multiple states; do I need to update all my workplace policies? How do I avoid being sued under my new state medical marijuana laws?

These are all critical questions, and the answers are complicated.

A cloud of confusion

Thirty-four states and D.C. have approved medical marijuana use, with 11 states and D.C. allowing recreational use; however, pot still is a Schedule 1 drug under the U.S. Controlled Substances Act. Much of the controversy lies around pre-employment screening and drug testing exemptions for medical marijuana use. Here is why:

For the employee with cancer, neuropathy, or epilepsy, cannabis can provide a great deal of relief. As with other prescriptions, the drug might even help them stay employed. The problem is that even if only ingested over the weekend, the active cannabinoid THC can appear in a drug screen for up to ten days.

Contrast this with the worker who gets drunk over the weekend. Even if he suffered the worst hangover of his life, there is no risk of not being hired or losing a job because of a failed drug test on Monday morning, even if still suffering the after-effects. Applying policy fairly in such a situation is only possible when we understand the laws.

Watch these trends!

Even though the Americans with Disabilities Act (ADA) and federal courts maintain that marijuana is not a protected medicinal disability, laws in states like Massachusetts and Rhode Island require reasonable accommodation. However, being under the influence at work may still be a fireable offense.

In 2018, Maine became the first state to remove cannabis from its drug test list. Inspired, Oregon pushed a narrowly defeated bill in 2019 that would have prohibited Oregon employers from making employment conditional on negative drug tests for lawful substances like marijuana (and currently, psilocybin with prescription). Expect more states to strike marijuana.

In Arizona, Arkansas, Delaware, Illinois, Minnesota, and Rhode Island, employers cannot refuse employment based solely on a positive drug test if the applicant holds a valid medical card. Some states are now writing employment protections into legalization bills to accommodate medical marijuana users.

One trend that recognizes recreational pot use is for employers to focus more on impairment than drug test results except in safety or federally regulated positions. The bottom line is for companies to find a way to support a safe workplace while making reasonable accommodation for employees with health conditions.

Clarity is the key!

Here are some general guidelines that can help clear up the confusion, paranoia, and legal risk. As always, consult with an employment lawyer to ensure policies align with federal, state, and local laws.

There are currently no federal or state laws that outlaw a drug-testing program. In fact, the federal government requires drug testing for covered employers in high-risk industries like transportation, aviation, and some government contractors under the Drug-Free Workplace Act.
Following federal workplace mandatory drug testing guidelines like those from Substance Abuse and Mental Health Services Administration (SAMSA) will put you on a firm legal footing while you work to integrate new state and local laws.
Ensure that your drug policies are transparent and fair and that they promote a safe and healthy workplace for all employees. If your company does business in multiple states, ensure that policies incorporate local rules and restrictions. Hiring promotions should specify a drug-free workplace and mandatory drug testing if applicable.
All job candidates should read and sign a drug policy. While respecting medical privacy, discuss ADA accommodation requests at the time of hire. Remember that it is unlawful to ask a worker about the nature of a disability or to require proof with a medical exam unless that requirement applies to all workers in a sensitive position. However, the ADA does not consider pre-employment drug screening a medical exam if it applies to every new hire, especially those in a safety position. Some states require that you only drug test after the candidate has received a conditional offer, reviewed the drug policy, or had a chance to disclose drug use that might cause impairment. Since state laws differ, check here for a list of states or with your lawyer for specific rules (source updated November 16, 2020).
Medical marijuana users should present a valid medical marijuana card. In states like Delaware, Arizona, and Massachusetts, if they are a cardholder, an employee cannot be fired for failing a drug test.

Someday, we may see some clarity on the issue of medical marijuana use and drug testing. For now, be sure your program aligns with applicable federal, state, and local laws. If in doubt, consult a competent employment attorney.