Employment Drug Testing for Cannabis

The year was 2012. I was no longer working for the cannabis industry, and it became necessary for me to seek employment elsewhere. A friend recommended that I submit an application for the big-box store that he and his family worked at, and they would put in a good word for me. So that’s what I did, and I went through the interview process without issue. Eventually they called to let me know that I had been hired, and asked me to come in and fill out the final paperwork. When I applied for this job, I was well aware that a drug test was coming, but I was younger and generally less prepared. Planning a multiple week hiatus from cannabis was, in hindsight, almost definitely something I didn’t even consider. What I wasn’t prepared for was that, besides the final paperwork signing, they asked me to go take my drug test. I of course gave them an enthusiastic “Yes! Not a problem at all!” and proceeded to internally panic.

You see, I was fortunate that in all of my cannabis-consuming adult life up to that point, that I had never been drug tested for a job. I spent most of my life working for family, and the few jobs I had outside of that typically wouldn’t drug test unless you were injured or involved in an accident on the job.

So I left the office as confidently as I could manage, and did the only thing I could think of when I got to my waiting ride: called my mom. Without giving away too much, I managed to pass my drug test with my mom and roommate’s help, and proceeded to get hired for what turned out to be the least fun job I ever had. That being said, a lot has changed across the country in the last decade regarding cannabis laws, but what, if anything, has changed in employment regulations?

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The possibility of pre-employment drug screening has been the reality for as long as I can remember, but the history of public and private sector employers implementing mandatory drug screenings is relatively new, and can be traced back to America’s War on Drugs. Somehow it all always comes back to Reagan, doesn’t it? Anyway, in 1986 Reagan signed Executive Order 12564 - Drug-free Federal Workplace which made using illegal drugs an absolute “no-no” for approximately 1.1 million federal employees. It was now “a condition of employment for all federal employees to refrain from using illegal drugs on or off-duty”, and it didn’t take long for the private sector employers to follow suit. Heck, it’s right there in the executive order that the federal government “can and should show the way towards achieving drug-free workplaces”… you know, right after all the stuff about the “billions of dollars of lost productivity each year”.

My sassiness aside, I think we can all agree that there are certain jobs and industries where impairment is likely a bad idea. In 1991, congress had a similar idea and passed the Omnibus Transportation Employee Testing Act which implemented drug testing for “safety-sensitive transportation employees in the aviation, trucking (including school bus drivers, and certain limousine and van drivers), railroads, mass transit, and pipelines industries”. The Department of Transportation (DOT) agencies, which includes the Federal Aviation Administration (FAA) and the Federal Transit Administration (FTA), each have industry specific guidelines for drug and alcohol testing employees. These industry specific guidelines can include pre-employment or pre-transfer testing, unannounced and ongoing random testing, post accident or “reasonable cause/suspicion testing”.

All that being said, state laws legalizing adult use or recreational cannabis mean basically nothing to the DOT. Ignoring the fact the the DOT’s Recreational Marijuana Notice is about as snarky a government document as I’ve seen, it’s obvious that they are steadfastly deferring to the federal scheduling of cannabis as a schedule 1 substance, and that the DOT’s Drug and Alcohol Testing Regulation “does not authorize the use of Schedule I drugs, including marijuana, for any reason.” When they say for any reason, they mean it too. Medical cannabis patients are not exempt under the DOT’s testing regulations. This means that the DOT’s Medical Review Officers (MROs), the licensed physicians who review the Department’s lab tests, will not “verify drug tests as negative” based on state medical or adult use cannabis laws.

While the federal consensus is that as long as cannabis is a schedule 1 substance, it’s a no-no for federal employees - and some industries that receive federal funds - some states that have passed medical and recreational cannabis laws have also implemented state level protections for employees and patients.

Arizona

The obvious first place to look at is Arizona, which does in fact protect against discrimination for card holding medical cannabis patients. Title 36-2813 specifies that, unless the employer would lose “monetary or licensing related benefit under federal law or regulations”, they may not discriminate against a current or prospective employees based on their status as a medical cannabis card holder or a drug test that is positive for cannabis; unless a patient “used, possessed or was impaired” on the property or during their work hours. Title 36-2813 also provides medical cannabis patients in Arizona protection from discrimination by landlords, schools and in medical and custody cases.

Texas

Although Texas has had the Compassionate Use Program (CUP) in place since 2015, there are no workplace protections in place for medical cannabis users. Texas has virtually no limitations on private companies implementing drug testing so long as they aren’t violating federal law. This includes but is not limited to pre-employment, post-accident, and random testing, so long as the employee received a written copy of the company’s drug testing policies.

The running theme in all of the cannabis research I’ve done throughout the years is that it is so very variable, and it’s no different when it comes to state by state, workplace cannabis testing. Some states with medical and adult use cannabis have no protections in place for employees, while others specified in their medical cannabis bills that it is in no way trying to stop employers from enforcing a “drug-free workplace” or requiring “any employer to permit, accommodate, or allow the medical use of medical cannabis” - looking at you, Mississippi.

A 2022 article by Bloomberg Law suggests that employers implement a “monitoring” system to determine whether or not employees are actively impaired in the workplace and testing accordingly. Personally, I think this sentiment has its own problematic implications, but that aside, drug testing for cannabis is a relatively unreliable way to test for “active impairment”. Besides that, what does “active impairment” in regards to cannabis even look like?

Cannabis Impairment

Here is where we run into that same old roadblock we seem to always run into: the status of cannabis in the US as a schedule 1 substance makes it nearly impossible to accurately study. In my research, looking for what might be considered “cannabis impairment” often led me to government pages warning me away from high driving, so it feels like it’s a pretty safe assumption to say that there’s no general scientific consensus for what cannabis impairment should look like. Honestly I’m not sure what cannabis impairment looks like for me specifically anymore.

According to the CDC, recent cannabis use (within 24hrs) has an immediate effect on “thinking, attention, memory, coordination, movement, and time perception.” While “recent” in this instance refers to “within the last 24 hours”, some studies have indicated that the “impairment window” for cannabis can last from three to ten hours. Unsurprisingly, the “window” is subject to a number of variables. Do you prefer joints or vapes? Are you more of an edibles person? Are you a daily consumer or a less frequent enjoyer? While this meta-analysis study showed that impairment may last up to ten hours after consuming high doses of THC, the “typical duration of impairment is […] four hours, when lower doses of THC are consumed via smoking or vaporization and simpler tasks are undertaken (e.g., those using cognitive skills such as reaction time, sustained attention and working memory).”

On top of all of that, cannabis can remain in your system for as long as 30 days after consumption, which makes the commonplace urinalysis drug tests basically useless for testing for active impairment. This can also be affected by dosage, frequency and consumption method.

I want to wrap this up by saying that according to the Ontario Human Rights Commission, the United States is the only country in the world that uses drug testing as significantly as we do. Pre-employment drug testing is rarely permitted in Canada, and random drug testing is seen as discriminatory and a violation of basic rights. While I think it’s common sense that employers maintain regulations for safety-sensitive positions in order to ensure the safety of their employees and the public, it seems as if the US is once again behind the curve thanks to our ol’ pal Ron and his War on Drugs. That being said, it is nice to see some protections in place for cannabis consumers as the industry continues to grow and change.