Last updated: February 24, 2020
Attention pot lovers! If you think you can hide behind vague references to the Fourth Amendment or that news report you heard on the decriminalization of marijuana when you walk in to apply for a job, think again.
Sure, it may seem like the occasional joint is no big deal (and no one’s business but your own), but if you are hoping to get hired or keep the job you have, you may be in for a rude awakening. Employers haven’t lost their right to drug test job applicants and current employees, and appealing to the ACLU and chanting “Fourth Amendment!” is not going to help.
The law is clear
We all associate the Fourth Amendment with protection against unreasonable searches and seizures, but it protects against searches by the government, not employers. Laws may be lessening the penalties, but that doesn’t make the drug any less dangerous or take away the right of the employer to prevent it from the workplace. Fairness is what private employers who want to stay within their rights need to legally drug test employees and job applicants for a wide variety of substances. In fact, the government (you know, the same one that operates under the Fourth Amendment) still has a protected right to drug test, too. The law is clear, but more than that, it’s already been tested in places with the most lenient laws around and there’s some bad news if you’re hoping the winds of change are blowing smoke your way.
Courts have spoken
The Colorado Supreme Court heard a challenge that pot smokers thought would be a sure thing. An employee of a cable company had a much better case than your average recreational stoner. His medical marijuana card didn’t make a difference. Employers can implement a screening program to prevent employees from using if they want.
Other states will follow Colorado’s lead if challenges are brought. Marijuana is still illegal on a federal level and while state laws may make use less criminal in some places, there are no state laws that prevent employers from firing an employee who fails a drug test. Not only that, but federal employers and companies that hold federal contracts in any state are required to fire any employee who fails a drug test. Other jobs that involve public safety will also always be more strict when it comes to prohibiting drug use.
Don’t expect a second chance
If you test positive for a drug test, you may think you will get a temporary pass from your employer, but you shouldn’t rely on your company’s EAP to save you. No employer is required to have one. Even then, the assistance might be post-employment. If you’re looking for a job and you’re asked to submit to a drug test, you very likely won’y get any option to challenge the results if you test positive. Ignorance of the law doesn’t work in traffic tickets and it certainly doesn’t work when it comes to thinking you’re safe if you “only smoke on the weekend” and never at your place of work.
So, before you think the law is on your side if you fail an employer’s drug test for recreational use of pot, check your excuses and hope for keeping your paycheck at the door. You can still be tested in places where marijuana is legal and more than that, you can be fired.