It is confusing for job seekers to know what challenges they may face with drug testing if they are either a recreational pot user or use cannabis for medicinal reasons. Throw in the proliferation of CBD (cannabidiol) products now on the market, and there is much uncertainty around the whole topic of marijuana drug testing. With states having conflicting laws than what is at the federal level, this has resulted in more court cases pitting employees (and some job seekers) versus employers. I don’t have a crystal ball, but with two-thirds of Americans believing that marijuana should be legalized (Pew Research), it would seem that there will be even more legalization in the future with the biggest change possibly happening at the federal level. That would be a possible game-changer. But until then, if you are currently looking for a job and you use marijuana, what do you need to know?

Marijuana and Its Effects

Marijuana or cannabis has been used for centuries, as least as far back as the ancient Egyptians. Marijuana comes from the Cannabis sativa plant. The plant has many chemicals, over 100 of them, and they fall into the category of cannabinoids. THC is the one most associated with the effect that using pot has on the brain – a general feeling of relaxation. Other effects can include light-headiness, enhancement of the senses and short-term memory issues. The initial effects of THC generally last a few hours, but THC can remain in the body for several days. The 2018 National Survey of Drug Use and Health results showed that 45.3% of the US population has used marijuana during their lifetime and 15.9% have used it within the past year. Compare that with 80.9% of people that have used alcohol during their lifetime and 65.7% within the past year.

What Are the Current Laws About Marijuana Use?

In the US, there are both federal and state laws with regard to marijuana use, possession and distribution. These are the current laws as of November 2019. Please make sure to check with regard to the current federal and state laws, as they are ever-changing.

Federal Law

The Controlled Substance Act is the federal statute that regulates the manufacturing, importation, possession, use, and distribution of certain designated substances. Marijuana and its cannabinoids are considered a Schedule I controlled substance, meaning that it is considered to have a high potential for abuse and no recognized medical use. There are criminal penalties for the use of marijuana. On Wednesday, November 20, 2019. The House Judiciary Committee approved a bill that would remove marijuana as a Schedule I controlled substance.

State Law

Some states have decided to allow marijuana use for medicinal or recreational purposes. Some state laws mimic the federal law prohibiting marijuana use but now allow CBD use, consistent with the passage of the US Farm Bill in 2018 (see below). Others prohibit both marijuana and CBD use.  As of November 2019, these are the states that allow some form of marijuana use or CBD use. Please refer to the state’s laws for what is legal and illegal for your state.

Adult Use (Recreational) Allowed

Alaska

California

Colorado

District of Columbia

Illinois (1/1/20)

Maine

Massachusetts

Michigan (12/1/19)

Nevada

Oregon

Vermont

Washington

Medical Use (see state guidelines on what is allowed)

Arizona

Arkansas

Connecticut

Delaware

Florida

Hawaii

Louisiana

Maryland

Minnesota

Missouri

Montana

New Hampshire

New Jersey

New Mexico

New York

North Dakota

Ohio

Oklahoma

Pennsylvania

Rhode Island

Utah

West Virginia

Limited Use such as CBD or low THC products (see state guidelines on what is allowed)

Alabama

Georgia

Indiana

Iowa

Kentucky

Mississippi

North Carolina

South Carolina

Tennessee

Texas

Virginia

Wisconsin

Wyoming

CBD. What Is It?

Many of the states that allow limited use do so by allowing the sale and use of CBD items (edibles, oils, vaping products, topicals, and pills). Most CBD comes from hemp. Due to the passage of the US Farm Bill in 2018 that legalized industrial hemp (cannabis that contains no more than 0.3% THC) and states allowing CBD sales, the amount of CBD products on the market has skyrocketed. The collective market for CBD sales is expected to exceed $20 billion in the United States by 2024, according to BDS Analytics and Arcview Market Research. CBD, along with THC, make up two of the many cannabinoids in cannabis. Scientists are still working out the mechanism that allows the CBD to interact with the body. CBD has shown to have a positive impact on some childhood conditions and may also help with anxiety, insomnia,  pain, and inflammation. 

What is the issue if federally CBD is legal? Well, the problem comes from the THC in things like CBD oil. CBD products in themselves do not produce a “high.” CBD does not have the same effect as THC.  Yet, someone using a product like CBD oil still could test positive during a drug test, as the regulations on these products are still evolving. Products tested have been found to have more or less CBD than the label indicates and in some cases, more THC than legally allowed. Additionally, CBD oil can also be obtained from the cannabis plant in those states where medical marijuana is allowed. The THC content could be higher than 0.3.

Drug Testing for Marijuana

For many companies, it has been routine to drug test both at the time of employment as well as randomly during employment or for cause, such as after an accident on the job. Many employers will conduct what is known as a “five-panel” test which looks for use of cocaine, PCP, opiates, amphetamines, and methamphetamines, ecstasy and marijuana. Some employers even do a more extensive “10-panel” test. In the case of marijuana, the test is usually done through a urine sample, though it can be done with one’s saliva, and less often through blood or hair samples. 

From the LabCorp website, this is an explanation of how marijuana use is tested.

Marijuana contains many chemical compounds that interact with the body, called cannabinoids. The main mind-altering cannabinoid in marijuana is THC (delta-9-tetrahydrocannabinol). The body breaks down THC into several inactive metabolites (e.g., THC-COOH, 11-nor-carboxy-delta-9-tetrahydrocannabinol). Since the metabolites of THC stay in the body for a longer period of time than THC does, most marijuana testing detects the presence of THC-COOH or other metabolites in urine. Some tests also detect the active compound, THC, for example when marijuana testing is done using blood or saliva.

The tests for THC just determine the presence of it in the body. Because THC metabolizes at different rates depending on how much was ingested and how heavy a user, the test may only indicate someone has THC in their body, not the current level of impairment.

For some positions, pre-employment and random drug testing after employment is required by the US federal government as part of the Department of Transportation’s requirements for those in such safety-sensitive industries as aviation, trucking, railroads, etc. Federal employees involved in law enforcement and those in the military or reserves are subject to pre-employment drug testing. For other employers, testing is optional. Employers site concerns over safety and the cost from accidents, including workers' compensation claims, absenteeism due to drug use, lost productivity and turnover. In 2019, researchers from the University of California-San Francisco found that in Colorado, where marijuana is legal for both recreational and medical purposes, the frequency of minor car crashes did increase by 10%. On the other hand, the National Academies of Science, Engineering, and Medicine reported in 2017 that, “…patients who were treated with cannabis or cannabinoids were more likely to experience a significant reduction in pain symptoms” which potentially could result in less absenteeism and higher productivity. 

Quest Diagnostics, a leading provider of drug testing in the US, came out with a report in April 2019 that showed the rate at which the general population tested positive for drug use hit the highest rate since 2004. Marijuana use, as cited in this report, increased 17% in urine testing since 2014. The problem many companies are grappling with is does a positive marijuana test indicate that the person is even impaired at the time of the test?

Confusion About Marijuana and Drug Testing

Nevada has become the first state to outlaw the denying of a job to a candidate that tests positive for marijuana, except for specific safety positions. The measure goes into full effect starting January 1, 2020. New York City also has a similar law that was passed in April 2019. This does not preclude employers in these jurisdictions from conducting random drug testing or testing after a workplace accident.

So what if you are in a state or locality that had made it legal for you to use marijuana for recreational or medical purposes, and a prospective employer requires pre-employment drug testing? Some have laws that do not allow employers to discriminate against employees for activities that are legal during non-work times (ex. Maine’s non-discrimination law), yet employers are still allowed to have drug-free workplace policies. This includes allowing for drug testing and prohibiting the employment of those that are found in violation of these policies. As long as there is a federal law that considers marijuana a Schedule I drug and thus illegal, many courts have sided with employers who enforce drug-free workplace policies.

That being said, some employers are dropping pre-employment drug testing, as it poses issues especially for those that are using it for medical reasons. More and more, cases are coming to the courts where employees have either been fired or not employed after failing a drug test while using medical marijuana. There are concerns about whether, in those cases, there were violations of a state’s non-discrimination laws. Also, some employers are finding it too difficult to find an adequate number of qualified employees due to their drug testing requirements (either people do not apply or fail the drug test).  For others, especially those with a younger workforce, they see this as a morale issue and not consistent with their corporate culture.

For applicants, the best thing to do is try to find out ahead of time if there will be drug testing. For major employers, you may be able to find out this information through websites like Glassdoor, Quora or Reddit. If you know someone working at that company or have a connection that knows someone, you might be able to ask that person about their experience. Otherwise, you can ask the interviewer, but I would do it in a nonchalant manner as possible during the screening or interviewing process. Something like, “What is your pre-employment process?” might give you information on any background checks and/or drug screening. Once you know the answer, you will need to make the decision, in your particular case, whether you want to move forward in the hiring process.

The information contained in this article is for educational and informational purposes only and is not intended as health, medical or legal advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law.