Everybody Must Get Stoned: Drug Testing In An Age of Legalized Recreational And Medical Marijuana-Revisited

By Mark F. Kluger and William H. Healey

This is a revised and substantially updated version of an article we published about a year ago.

While working at the quarry, Fred accidentally drops a rock on Mr. Slate’s foot. In accordance with the company’s post-accident drug and alcohol testing policy, Fred is tested and the results are positive for marijuana. He tells Mr. Slate that over the weekend he got stoned at Barney’s bachelor party which was held, where else…in Boulder Colorado, where recreational marijuana is legal. Besides, Fred explained, he has a prescription for medical marijuana because the drug helps with, what else…. his kidney stones (last one). So now what can Mr. Slate do?

Twenty nine states now have legalized marijuana use in some form,  nine and D.C. for recreational and medicinal use and 20 just for medical purposes and still other states have simply decriminalized possession of small amounts. Many other states, including New Jersey and New York seem to be heading toward legalizing pot for recreational use. As a result, the legal use of marijuana by applicants and employees can create some tricky issues for employers. Specifically, employers that conduct pre-employment, random, reasonable suspicion or post-accident drug tests may well have an applicant or employee who, like Fred, used the drug in a state in which it is legal or for medical reasons, the latter of which may implicate state laws protecting employees with disabilities. However, it is also important to remember that marijuana is still illegal under federal law and in January 2018, the Attorney General reversed prior DOJ policy and signaled that local U.S. Attorneys could pursue marijuana use and possession cases if they chose. Although the U.S. Senate currently has a bill before it that would decriminalize use and possession, that will likely have a long uphill battle. So currently, a federal contractor would have no choice but to fire Fred; other employers still have discretion to establish their own policy to address this issue.

There are signs though that opposition to decriminalization and legalizing recreational use is waning. An October 2017, Gallup poll showed that 64% of Americans, with majorities from both political parties, favored legalization. An early 2018 FDU polled concluded that 42% of New Jerseyans favor full legalization while 26% support decriminalization. Heck even the conservative former Senate Majority Leader, John Boehner recently announced that he is joining the Board of a cannabis company, stating that “like that of millions of other Americans” his view on legalization “has evolved.” Either that or he needed the money that likely comes with the gig. “Plus that stuff just takes the edge off” he added [or maybe not].

So here’s the deal for Mr. Slate:  simply because an employee (or applicant) uses marijuana in a state in which it is legal does not necessarily  mean that an employer has to accept the applicant or retain the employee who tests positive. After all, alcohol is legal and employers can certainly refuse to hire and can fire someone who tests positive for it. There are, however, two important distinctions: (1) while alcohol metabolizes at a rate of about an ounce an hour, marijuana can be detected through a standard urine test for as long as 12 weeks for a frequent user and up to 30 days for the occasional toker. So someone who tests positive for marijuana may not be impaired depending on how long between ingestion and testing; and (2) there are now 11 states with statutes and 1 state court decision that provide protection against employment discrimination for those with medical marijuana prescriptions. As a result, employers at least in those states, cannot refuse to hire an applicant or discipline or terminate an employee who tests positive without first verifying that the individual does not have a prescription. That may not necessarily be the end of the story when it comes to those who work in a safety sensitive job. As Mr. Slate’s foot will attest, we don’t want Fred operating heavy dinosaur equipment if he is impaired. But until there is a test to determine what constitutes cannabis “impairment”, a positive test result does not necessarily net sufficient information for an employer to decide whether to hire a candidate for a specific job or allow an employee to remain employed.

Among the options that employers must now consider are:

  • Identifying all safety-sensitive jobs;
  • Developing policies for reacting to positive test results that might differ based on the job;
  • Training supervisors to recognize the signs of being under the influence;
  • Keeping the snacks locked up and securely guarded.

Another option that absolutely should be taken seriously, particularly if there are no safety sensitive jobs at issue, is simply to remove cannabis from the drug testing panel so that employers will just not know whether the individual has the drug in their system.  While the “head in the sand” approach would likely present a negligence issue for safety sensitive jobs, for most positions, it might be the best way to avoid the dilemmas and ambiguities that now permeate this issue.

If you need help navigating through the complex regulatory and common law issues involving pre-employment, random, reasonable suspicion and post-accident drug and alcohol testing, please call us.