Last updated: January 30, 2023
The marijuana drug test detects tetrahydrocannabinol (THC). It’s what gets people high—but if people use pot at home, they can flunk the test at work weeks later. Therefore, employers who operate their businesses in states where marijuana is legal are taking a lot of flak if they test for the drug.
Marijuana advocates say it’s an infringement of the right to privacy, especially in the case of pre-employment drug testing. People who smoke marijuana legally in their homes may not get a job because they can pop positive for a drug test for weeks—months even—after last using the drug.
Fat cells are the problem
The amount of time that marijuana is detectable in the system varies from person to person. No one knows exactly how long any drugs stay in the system.
That’s because it depends on a person’s metabolic rate. In other words, how quickly the body breaks down what it has ingested.
- Age—young people tend to metabolize everything more quickly than older people do
- Overall health—those with poor health may not metabolize things as quickly as those in good health
- Body mass—drugs can be detected in the system of people who are heavier because some drug metabolites accumulate in fatty tissues
- Drug tolerance—when someone has built up a tolerance to a drug, the body tends to metabolize it more quickly
- Dosage and frequency of use—heavy or long-time use of drugs is detected much longer than one time use
The body stores marijuana metabolites in the fat cells. Unfortunately, that makes them detectable for days up to a few weeks after last using weed for a casual smoker. Chronic use is a different story though. Users can pop positive for pot for three months or more after they quit using the drug.
It’s because of that reason that there’s a call for employers to stop testing for pot. Marijuana advocates say people applying for a job shouldn’t lose the chance because they participated in a legal activity. Some governments are starting to lean that way too.
Who bans testing for marijuana?
New York City and the State of Nevada were the first to ban the pre-employment marijuana drug test. They left carve-outs that deemed testing to continue for those in the safety-sensitive workforce though.
The State of New York took things a step farther last fall when the New York Department of Labor announced that employers are no longer allowed to drug test most workers for marijuana.
Others want to jump on the bandwagon
In March 2022, a Washington, D.C. Council unanimously approved a bill to ban pre-employment testing for many businesses. Councilman Trayon White (D) sponsored the bill stating that it was an important step toward eliminating the historic inequities of cannabis use. If passed, the bill ensures that those who use cannabis medically or recreationally can’t fail a marijuana drug test for what they do in their private time.
The bill makes exceptions for the following employees:
- Safety-sensitive construction workers
- Jobs that require a commercial driver’s license
- Childcare workers
- Medical personnel
The State of Illinois House of Representatives passed a bill this month that, if approved by the Senate, would protect adults using legal cannabis during their free time. Most employers would be prohibited from firing workers or discriminating against job applicants for testing positive for marijuana.
If approved, there will be exceptions in place for marijuana drug testing to continue for the following employees:
- Workers who operate heavy machinery
- Those who operate aircraft
- Employees who carry a weapon
- Emergency services workers
- Safety-sensitive workers
Many recreational smokers are hoping for a favorable response from the Senate. More than likely, that’s because back in 2019, Illinois became the first state to legalize cannabis and launch a retail system for adults through an act of legislature rather than a voter initiative.
Federal legalization pending
As long as marijuana remains a Schedule 1 substance on the Controlled Substances Act, it remains illegal at the federal level. So, if push comes to shove, an employer is entirely within their rights to keep marijuana on the company drug test because federal law takes precedent over the state.
However, there are three efforts to legalize pot at the federal level.
States Reform Act
The States Reform Act was introduced in 2021. It would remove marijuana from Schedule 1 and allow individual states to govern their marijuana laws.
Marijuana Opportunity Reinvestment and Expungement (MORE) Act
The MORE Act failed to pass the Senate in 2019. Democrats reintroduced it in 2021. In addition to removing marijuana’s Schedule 1 classification, it would expunge convictions and allow for sentence review hearings regarding federal cannabis offenses to be reviewed.
The MORE Act would impose a 5% tax on retail sales which would increase to 8% over a three-year period. The tax would support an Opportunity Trust Fund that would be invested in communities that have been historically impacted by drugs.
Lastly, if the bill passes, there are plans to establish an Office of Cannabis Justice to administer the social equity aspects of the law.
Cannabis Administrative and Opportunity (CAO) Act
Democrats also introduced the CAO Act in 2021. It builds on the proposals of the MORE Act. If passed, it removes cannabis from Schedule 1 status, automatically expunges federal cannabis offenses, and helps communities disproportionately affected by drugs.
The future of the marijuana drug test
Marijuana use causes impairment. That is why it’s classified as a Schedule 1 drug. Employees need their wits about them. Using drugs at work increases the risk of an accident happening.
Everyone around them is in danger of that happening too.
Until there is a way to test for current impairment, many employers are choosing to stand with the federal government and test for marijuana.
In light of the possibility that the federal government may soon legalize pot, hopefully, the timing of the release of a marijuana breathalyzer will coincide. It will revolutionize the industry.