Drug Testing and Employment

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Drug Testing and Employment

Drug Testing and Employment

Unfortunately notwithstanding the passage of Prop 64 (AUMA), the legalization of marijuana/cannabis in some instances, employers may still refuse to hire and fire persons that use marijuana/cannabis. California NORML has sponsored pending legislation, that will provide protections for patients from lose of  employment. 

Ross v. Raging Wire Telecom [42 Cal. 4th 920 (2008)]- CA Supreme Court ruled that an employer may terminate or deny employment by a private company to anyone who merely admits to using or who uses marijuana, even if they are a qualified medical marijuana patient. 

There is no constitutional protection from testing or for refusing a drug test unless one is employed by a governmental agency. Testing governmental employees has been struck down by courts  in many types of work except where the employee’s impairment could cause serious threat or harm, (i.e. a job as a train conductor). However, private employers may impose drug testing as a condition of employment, and if the  “dirty” employee can be fired.

Estimated lengths of time that marijuana use is detectable in the body by urine testing:  

Single Use: 5 days 

Double Use: 12-17 days 

Heavy Use: 15-35 days

An employee accused of having a positive drug test result should request a second independent laboratory test of the “dirty” sample. It has been reported that false positives can result from a number of reasons. False positives can force an employee into unnecessary rehabilitation programs or, even worse, result in an unwarranted firing. Firing a good employee is a loss to both parties. 

Note from Bruce: I am unaware of any chemical product that has proven effective in “cleansing” the system of  THC. Abstaining, exercising, and drinking a lot of water are the only proven ways to rid the body of THC. You may purchase an over-the-counter kit that detects THC from most drugstores to do a confidential test.  

EMPLOYERS NEED GUIDANCE: Employers should be informed and made to understand that the rational purpose for conducting drug testing is to determine whether or not an employee is impaired on the job. Since marijuana metabolite is detectable in urine for up to 35 days or more after use, its existence does not establish impairment.  The scientific community generally agrees that the effects of marijuana last no more than about three hours after use. 

Arguably, a more effective approach to ensure safety is to observe the employee’s on-the-job behavior and to administer motor skill tests similar to those used in DUI cases, or some form of written tests. This type of policy reduces the cost of testing, protects the privacy and morale of the employees, and is a more effective way to uncover an employee’s inability to perform his/her duties safely which could be for any number of reasons.  

High THC levels indicate recent use but do not necessarily indicate impairment. Zero tolerance laws incriminate many un-impaired drivers. 

The scientific basis for such laws is still being tested and remains unclear. There is no agreement on what threshold amount causes impairment; THC-COOH (Metabolites) has no bearing on impairment.  

Note from Bruce: Prop 64, passed in 2016, still has not changed the ability of employers to hire people who use  marijuana/cannabis, medically or otherwise, either through personal possession has been legalized of up to an  ounce (28.5 grams) 

Note from Bruce: Prop 65 provides $3,000,000 early to support scientific research to determine impairment  resulting from the use of all drugs both legal and controlled i.e. ADVIL PM and other prescription and nonprescription drugs 

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