A new Marist poll found that:
- 52% of U.S. adults have tried marijuana at least once
- 56% of Americans find the drug “socially acceptable”
We live in a nation where:
- 33 states plus D.C. allow medical cannabis use
- 11 of these states plus D.C. now allow recreational use
While the number of American employers that perform drug screenings is falling, data from the Society for Human Resource Management (SHRM) states that approximately 57% of employers in the United States still perform drug tests on all job candidates. According to Statistic Brain, the cost of implementing these tests is over $3.75 billion each year.
It is bizarre that in some states where weed is legal for recreational use, such as in California, employers are legally allowed to fire employees or refuse a job to an applicant if they test positive for marijuana.
Even one-time users can expect to test positive for a couple of days after consuming weed. THC is the active psychoactive compound in marijuana that is tested. A urine drug screen (also called a urinalysis or UDS) tests for the metabolite THC-COOH. Although a UDS does not prove an exact amount of the metabolite, it does indicate that the concentration is above a certain threshold.
When might you have to take a drug test?
One of the most common reasons to take a drug test is for a pre-employment screening. Nearly all government and public jobs will test you, but private employers use drug tests during pre-employment screening for a number of reasons; chiefly because they are very likely to get federal and state incentives to conduct drug tests.
Insurance companies will also provide financial breaks to companies that drug test. Certain occupations are required to drug test as well, such as firefighters or bus drivers, due to concerns for public safety.
While companies are free to set their own guidelines and standards for drug testing, most tend to follow the guidelines put forth by the Substance Abuse and Mental Health Services Administration. This is done to protect from lawsuits.
Drug tests might also be ongoing, as required by your employer. Many workplaces institute random drug tests for individual employees or will periodically drug test their entire staff. Another time drug tests might be mandated by the employer is after you have been on a significantly long vacation.
If you have been involved in an accident involving injury to persons or damage to equipment, you may be drug tested, as well, by companies, in an attempt to shift blame and responsibility and avoid having to pay claims if the accident was caused by intoxication or impairment due to alcohol or drugs.
Another time when a drug test might be required is at school if you are a student in a middle school, high school, or college, and participating in extracurricular activities like sports. In middle school and high school, the tests are done to discourage students from using drugs. The thought is that by hanging the possibility of random drug testing over students’ heads, they will be more able to resist the peer pressure to do drugs, due to the possibility of consequences.
With college athletes, drug tests are performed in accordance with NCAA guidelines, to ensure collegiate athletes are not using performance-enhancing drugs, in addition to illicit or street drugs.
Probation and parole are common times when one has to submit to a drug test. Regular drug tests might be part of your schedule, and your parole officer or the probation department will usually reserve the right to have you submit to a drug test at any time. Parole and probation will attach these conditions to their terms for a number of reasons.
The state believes that drug use is an obstacle for an individual’s successful rehabilitation and reintegration into society, and, as such, will use failing a drug test on probation as a hammer to return you to incarceration or institute stiffer penalties and punishments upon you.
Can you still get hired if you fail a drug test?
If your employer pays for marijuana screening via urinalysis, it is highly likely that individuals who fail the test will lose their job. Likewise, those who apply for a role and test positive will not be employed by that company. While a variety of states have dispensed with marijuana testing, it is still a fireable offense in a lot of areas.
In the event of a positive test, do not automatically accept the result. Obviously, if you have smoked weed recently then there is not much to discuss. However, there is an increasing number of stories about people who failed drug tests even though they have not used cannabis.
How does a false positive occur?
An old study by Moyer et al., published in Mayo Clinic Proceedings in May 1987, suggested that an EMIT-dau screening test with a limit of 20 ng/mL was nearly 100% accurate. However, the research team used the caveat that such tests were only this reliable if an “unadulterated urine specimen” was used. They also outlined that up to 15% of positive results could be “false positives”. Overall, 3% of all tests could reveal a false positive, so if you have genuinely not used cannabis recently, do not accept your fate.
5-10% of all drug tests reveal a false positive, and 10-15% yield a false negative. In fact, the sheer number of ways in which it is possible to fail a drug screening accidentally is astounding.
There are a handful of prescription drugs that could result in a false-positive result for THC. NSAIDs such as Ibuprofen have been blamed for causing false positives. However, the vast majority of urine specimens are corrected when a different screening methodology is used. Also, pantoprazole and potentially other proton pump inhibitors (PPIs) could cause a false positive reading for THC.
Surprisingly, baby shampoo such as those sold by Johnson & Johnson and CVS could lead to a false-positive result for weed. These soaps may have compounds with a structure that resembles THC. Other factors, including hemp seed oil, B2, riboflavin, and medical conditions such as diabetes, liver disease & kidney disease, could also cause a false-positive result for THC in a drug screen.
Can you get in legal trouble for failing a work related drug test?
A pre-employment drug test, if failed, will usually result in the company declining to hire you. It is very unlikely that you would experience any consequences beyond that. Companies are under no obligation to share the results of a drug test with any entity other than themselves and, in many cases, would be legally unable to do so even if they wanted to.
All states and some federal agencies have laws in place to protect the privacy of the individual, so a failed test usually goes no further than the human resources department of that company.
Certain employers may be required to report the results of your drug test to an outside agency, such as the Department of Motor Vehicles or the unemployment office, but this should have no legal repercussions.
When currently employed and taking a drug test, the consequences for failure depend on a number of factors. The reason for the test, your company’s internal policy regarding drug tests, the length of time you have been employed, and your position within the company could all affect the aftermath of a failed drug test.
Most often, failing a drug test results in a separation of employment from the company, but again, these results will usually only stay within the company, and you are very unlikely to suffer any legal consequences.
Failing a probation drug test
Probation and parole drug test failures, of course, have higher stakes. As the terms of parole and probation are directly connected to incarceration, there are legal consequences for failing.
Failed drug tests and parole or probation violations will be used by the court system to determine your fate. Your probation officer will write a violation report and send it to a judge, who will then decide whether or not you receive only a warning, or get returned to incarceration. The judge’s decision will be based on the number of failed tests or other violations, and any other factors the judge deems necessary and relevant in your specific case.
Can weed users keep their jobs?
Several states sadly have very-little to no job protections even for legal cannabis users. However, you could be in luck if you live in one of the few states taking a stand against this unfair practice.
In December 2018 in Delaware, a judge ruled that an MMJ cardholder fired from his factory job after failing a drug test was allowed to pursue a lawsuit against his former employer.
According to Superior Court Judge Noel Primos, federal law does NOT preempt Delaware’s medical marijuana law. He continued by saying that the law does not require employers to commit an illegal act. Instead, it prevents them from discriminating based on the use of medical marijuana.
In February 2019, a federal judge rebuked a Walmart store in Arizona for firing an employee in possession of an MMJ card after she failed a drug test. According to Arizona United States District Judge, James A. Teilborg, Walmart was not justified in firing the employee because it was unable to prove that she was impaired at work.
In July 2019, New Jersey became the latest state to improve workplace protections for MMJ cardholders; the 14th state to do so. In the last couple of years, medical marijuana users have won cases in Arizona, Delaware, Rhode Island, and Connecticut.