If you reside in a state that has legalized marijuana for recreational and/or medical use, it might seem to follow that an employer has no business testing you for that drug or using the results of the screening in making hiring decisions. However, the issue isn’t so cut and dry.
“The use or possession of marijuana and cannabis-infused products, such as Cannabidiol (CBD) oil, is illegal under federal law. As such, a person that fails an employer drug test because of CBD use can indeed lawfully be terminated or [have] a job offer rescinded,” says David Reischer, employment attorney and CEO of LegalAdvice.com.
Job seekers who fear repercussions from marijuana use should look carefully into both their state’s laws and their potential employer’s written policies. While the following is not a substitute for consulting a legal expert, here are some things to consider regarding the issue of cannabis use and employment.
Where is cannabis legal?
As of September 2019, 33 states have legalized medical marijuana. Licensed doctors in these states may provide a written recommendation for patients they believe have a condition or disease that would benefit from the usage of marijuana plants or derived chemicals.
Eleven states and Washington, D.C. have legalized marijuana for recreational use by adults over 21, with New York and New Jersey possibly being added to that total in the near future.
Aren’t employers obligated to accept marijuana usage by someone who has a prescription?
A job seeker holding a medical marijuana card in a state where cannabis is legal should not assume problems won’t arise. With cannabis still illegal under federal law, individual states are navigating uncharted, murky territory.
“This is a rapidly changing area of law. However, it is presently lawful to dismiss an employee for using medical marijuana,” says Patrick Barone, principal attorney and founder of the Barone Defense Firm.
He cited the example of a Michigan case that challenged Walmart’s firing of an employee who was using medical marijuana as part of his cancer treatment. This ruling was upheld by the higher court.
“While this may change in the future, right now employers can restrict employee’s lawful use of marijuana and fire them if they fail to comply,” says Barone.
Despite federal court rulings that marijuana use is not protected by the Americans with Disabilities Act (ADA) because it is an illegal drug under federal law, some states view people who use medical marijuana as legally disabled. Nevada and New York, for instance, have laws that require employers to “reasonably accommodate the medical needs of an employee who is a certified patient holding a legal medical marijuana card.”
Why is drug testing for marijuana a complex issue?
THC, the active ingredient in marijuana, lingers in the bloodstream. Thus, if an applicant comes back with a positive test, it only shows that he used marijuana within the last few weeks or so. It doesn’t give the employer any information on the person’s current condition or possible impairment. In other words, even in states where recreational cannabis is legal, it’s impossible for an employer to distinguish a responsible weekend user from someone using on the job since accurate on-the-spot testing technology (akin to a breathalyzer to assess alcohol level) for marijuana use is not yet available.
Starting in 2020, Nevada becomes the first state in which most employers cannot immediately reject a job applicant for failing a marijuana screening test. Other states may follow this lead.
While individual companies can often decide whether or not to screen for cannabis, or even to drug test at all, employers with federal contracts or with employees who are licensed through federal agencies lack a choice. By law, they must screen job candidates for drugs, including marijuana because of its status as a Schedule 1 drug in the eye of the federal government.
In which industries is cannabis use most likely to cause employment problems?
Businesses differ greatly in their toleration of cannabis use by employees (and prospective ones) in states where it’s legal. Some employers don’t worry unless a worker shows up high or cannot perform job responsibilities. More conservative management may put greater stock in drug test results and not want any sign of marijuana in a job candidate’s system.
The nature of the position likewise influences decisions by employers. As Reischer notes, the justification for firing (or not hiring) a person that uses a CBD product can be strong when an employee operates heavy machinery, or when the job involves actions that can put other people’s lives at risk.
“In such instances, use of CBD may be against company employment policies that demand a high level of mental alertness in order to protect the safety of others,” he says. “Air traffic controllers, pilots, construction workers and other heavy industry certainly has a rationale to restrict any CBD use for their employees.”
So, how does all of this affect the job interview process?
Employers will usually inform candidates about drug testing policies somewhere during the application process and may say an offer of employment is contingent on the test results. For the job seeker, how to respond is rarely entirely clear.
“Unless you are using the drug to treat a condition, you might want to refrain when looking for a job,” says Chris Chancey, a professional recruiter and owner of Amplio Recruiting. “That being said, you must be ready to disclose use of medical marijuana at some point if you are offered a job and are required to take a test. I would recommend letting your prospective employer know that you use marijuana for medicinal purposes and if possible, when you usually use it. Generally, employers are not obligated to accept the use of marijuana during work hours.”
Recreational users in legal states that choose not to stop during their job hunt should be aware that they’re treading in uncertain waters. Becoming familiar with their state’s laws and precedents can provide some guidance, as can research into their prospective employer’s policies and history.
The reality, though, is it’s often difficult to judge what will happen. If sufficient time has passed since last use, an applicant may opt to try the test and hope for the best. Others feel it better to disclose responsible, after-hours use prior to taking a test they’ll likely fail in order to build trust. The result might be a fruitful conversation and a still-open job offer.