Imagine you've been offered your dream job, for which you must pass a pre-employment drug screening. You're concerned because you use cannabis (i.e. marijuana) off-hours, on doctor's orders, to treat chronic back pain. You've never come to work impaired, nor does it affect your performance. Your state allows for the medical use of marijuana, so shouldn't your prospective employer respect state law?
It depends. Some legal marijuana states protect employees and applicants from discrimination, but even these protections don't always apply. The following information will help you understand workplace drug testing laws in the context of off-duty, legal marijuana use.
Drug Screening and Cannabis: The Basics
Employers may choose to screen job applicants or current employees for the use of illicit substances as long as they're informed about the policy beforehand. While you always have the right to refuse a drug test, doing so may result in not getting the job or being fired. Most employers use a urinalysis to test for five or six specific substances, including THC (the high-inducing component of marijuana), but saliva or hair also may be tested.
Unlike substances that become untraceable in a user's urine within hours (alcohol) to one week (barbiturates), THC remains detectable for up to three or four weeks after use. This means occasional cannabis users are much more likely to test positive than those who frequently use alcohol or "hard" drugs such as heroin or cocaine. These types of tests are incapable of detecting current impairment, however.
When Cannabis May be Screened, Despite State Law
Federal employment laws don't protect cannabis users, since federal law doesn't recognize the legitimacy (and thus legality) of medical marijuana. Regardless of your state's recreational and/or medical marijuana laws (including the protections discussed below), employers may still take adverse action in response to a positive cannabis test. This is especially true for:
Workplace Drug Testing and Antidiscrimination Laws
Even in many legal marijuana states such as California, employees and job applicants have no legal protections for cannabis use, even if it's recommended by a physician. However, roughly a dozen states that allow medical marijuana do protect employees and/or job applicants from discrimination in some form. This doesn't apply to employers complying with federal regulations, such as contractors, or as required to obtain federal funding.
Under Connecticut law, for example, "No employer may refuse to hire a person or may discharge, penalize, or threaten an employee solely on the basis of such person's ... status as a qualifying patient." Similarly, Arizona law prohibits discrimination on the basis of "a registered qualifying patient's positive drug test for marijuana ... unless the patient used, possessed or was impaired by marijuana on the premises ... or during the hours of employment."
Other states with similar protections include Arkansas, Delaware, Illinois, Maine, Minnesota, New York, Pennsylvania, Maine, and Massachusetts. Some of these laws even require employers to reasonably accommodate medical marijuana users, such as those using cannabis at night being allowed to start work later the next morning (in order to allow the effects to fully wear off).
Workplace Drug Testing and Recreational Use
As of June 2019, Maine and Nevada are the only states to extend employment anti-discrimination protections to recreational cannabis users in addition to qualifying medical users. The Maine law states that "A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person 21 years of age or older solely for that person's consuming marijuana outside of the school's, employer's or landlord's property."
Nevada's law, slated to go into effect on Jan. 1, 2020, prohibits employers from rejecting job applicants who test positive for cannabis in a pre-employment drug screening (regardless of whether the applicant uses the herb for medical or recreational purposes). As with other such laws, Nevada's statute exempts emergency medical workers, firefighters, and other positions where public safety is concerned.
New York City, meanwhile, became the first city to ban marijuana testing of job applicants in 2019, with the usual exceptions for safety-sensitive positions or where such testing is required by federal regulations.
Confused About Legal Marijuana and Workplace Drug Testing? Call an Attorney
It's not easy to keep up with the rapidly changing landscape of state marijuana laws and federal enforcement. Depending on where you live or the nature of your job, you may not have any protections for your otherwise legally protected use of medical or recreational cannabis. If you have questions or need to file a claim, consider contacting an employment law attorney near you.