Last updated: September 28, 2020
If your state’s decision to legalize medical marijuana, recreational pot, or both has encouraged you to believe you’re now protected from employment drug testing—not to mention its potentially unpleasant economic consequences—think again. Even though you might be “legally” allowed on the state level to grow, smoke, or eat marijuana, it’s still illegal on the federal level.
Here’s the reality check: if you live in a state that has legalized marijuana, you no longer risk criminal prosecution for using—as far as the state is concerned. As far as the federal government is concerned, you’re breaking the law. The courts have consistently ruled that difference makes all the difference, pronouncing employer drug testing fr the drug completely legal in all fifty states.
See, employers are aware of some things you may not know. For example:
- Drug abuse and/or alcohol abuse costs American business some $80 million per year in lost productivity.
- Users are three times more likely get to work late.
- Compared to employees who don’t, drug users run 3.5 times the risk of being in or causing a workplace accident.
- Drug using employees are five times more likely to try for workers’ compensation.
Add to the above the fact that drug-free workplaces can be eligible for work insurance discounts and often avoid legal liabilities resulting from drug-related accidents, it’s no small wonder most employers opt for testing. Some employers are legally required to test—i.e., transportation, industries where safety is a concern, or government agencies like the Federal Highway Administration, Federal Aviation Administration, or the U.S. Coast Guard.
Bottom line, the fact that your state has legalized pot for medical and/or recreational use won’t get you out of drug testing, nor will it protect your job if you test positive. On the contrary, the courts have come down solidly, and repeatedly, on the side of employers’ rights to drug test potential or current employees, as well as their rights to either refuse employment or terminate it based on the results.
So, yes, you can be tested. Furthermore, since the federal government still classifies marijuana—even medical marijuana—as an illegal Schedule I drug with no proven medicinal value, you don’t have a legal leg to stand on if you test positive. In the case of medical marijuana, you can’t even appeal to the Americans with Disabilities Act, because that’s also a federal law and, as such, doesn’t protect treatments Uncle Sam hasn’t recognized or has declared illegal.
Still, despite these facts, an increasing number of folks believe themselves immune from drug testing because their states say pot is legal. Some job applicants are so confused about the issue, they make no bones about using. But companies are testing, and in states where weed is legal, the number of positives has increased significantly—along with the number of firings and refusals to hire. The problem has gotten so bad, companies have taken to sending out written reminders to their employees: This workplace is drug free, and you will be tested, regardless of what state law says.
Even if you limit your pot use to your days off, you’re liable to find yourself in a bind if you’re drug tested at work, because THC can be detected as long as 30 days after use, and your employer has the right to act on that information. This right was recently reaffirmed in Colorado when the courts upheld the drug-test related firing of an employee who was legally entitled to use medical marijuana and tested positive, despite the fact that he never used it at work.
By the way, you can be tested for other drugs, too: heroine, cocaine, alcohol, and amphetamine. Your employer can test for prescription painkiller and muscle relaxant use as well, although employees able to provide a valid doctor’s prescription or note justifying the same when the drug test is performed generally are protected by the ADA.