The support for the legalization of weed has been growing spontaneously. The question is, how does legal medical or recreational marijuana use, including a medical marijuana drug test, affect your job prospects? Unfortunately, the answer isn’t so simple.
A 1969 survey by Gallup showed that only 12% of Americans supported its legalization then. The percentage of Americans supporting weed legalization grew to an astounding 66% by 2018. Albeit steadily, weed is certainly shifting from a fantasy to a mainstream drug just like cigarettes and alcohol.
But while the laws and regulations regarding the use of pot are changing everywhere else, most employers are yet to be moved by its liberal use and continued legalization.
It’s quite confusing that even with close to 75% of American states approving weed for medical and/or recreational use, millions who take marijuana are still worrying about whether they will be subject to a positive marijuana test, including the legal use of medical marijuana.
Employment Drug Screening and State Laws
Medical marijuana, which may include THC products, is currently legal in 33 states plus the District of Columbia. Of these, Illinois recently became the 11th state to give a green light on the recreational use of this mysterious plant. All the other 17 states still hold onto their guns and don’t allow weed for use in any form.
Even with the rampant legalization of weed, current employees and those seeking jobs continue to be harassed by employers based on failed marijuana drug tests.
A major requirement when applying for jobs, applicants are often required to be tested for drug use and drug abuse. Depending on the laws of the state and company policy, you may be screened for pot to see if you have a positive drug test before a company offers you a job.
Will I get a job if I test positive and fail a medical marijuana drug test?
Whether you get a job if you test positive as an applicant largely depends on your state and the company’s workplace policy. At the moment, a good number of states that have approved marijuana use for medical and recreational purposes have laws that protect employees and job applicants from discrimination at the workplace. These laws protect employees who are marijuana users provided they don’t work under the influence of the drug and as far as they only use weed while off-duty.
Other medical weed-approved states have laws that allow the employer to deny a qualified job applicant a chance based on their weed test results. These laws may also allow the employer to have zero tolerance policies and allow them to fire employees who are found to have drug while off-duty.
Still, several states aren’t exact on this issue. In such states, for instance, in California, the court tends to stand with the employer (not in all cases, though).
Where does the Americans with Disabilities Act and reasonable accommodations come in?
The Americans with Disabilities Act (ADA) protects Americans with any form of disability from discrimination in all areas including employment. It also requires employers to make reasonable accommodations in the workplace in a way that will help disabled employees adequately perform the essential duties of their jobs.
If you have a disability and use medical marijuana to treat the symptoms, including cancer, glaucoma, and post-traumatic stress disorder (PTSD), you may be able to argue ADA that taking marijuana medications, including marijuana in it various form, is a reasonable accommodation.
Although this, in theory, could be partly true, there is a glitch.
Although you may qualify as a person with a disability and, therefore, enjoy some degree of protection as far as the American with Disabilities Act is concerned, this Act does not protect you against ‘’illegal use of cannabis.’
Regardless of what the laws say in your state, the Federal government still classifies marijuana as a controlled substance. This means even when used for medical purposes, weed remains illegal under the ADA. Also, keep in mind that the ADA only covers employers with a minimum of 15 employers. A marijuana user who is a qualified patient may want to consult with an attorney to determine if they may have ADA protection. Consulting with legal counsel may help you make the best decision for your situation.
No Direct Legal Protection
Arguably, except in the 17 states that don’t allow medical or recreational marijuana use, employers in all other states should not deny a qualified job applicant a vacancy because they tested positive for weed use. Actually, it’s perplexing why these employers say no to marijuana use even when the law says that it’s okay. Part of it may come from the fact that medical and recreation marijuana is still illegal under the U.S.’s controlled substances act.
The main hypocrisy for states is the lack of precise laws that protect legal users of recreational or prescription cannabis at the workplace.
There are a few legal limits that apply to job applicant drug testing, though:
- Violation of state-required drug testing procedures
- While most states today approve drug screening during the hiring process, they have also stipulated certain procedures and requirements that tend to make drug tests a little bit fair for the applicants. These procedures vary from state to state. But most of them require the prospective employer to indicate in the job postings that drug screening is a requirement. In addition, some states only approve weed drug testing only after the employer has extended an offer of employment that is conditioned on whether or not the applicant will pass the test.
- Invading one’s privacy
- Even in states that allow pre-employment drug screening, it’s illegal to invade someone’s privacy. This requirement may be violated depending on the way the employer decides to carry out the drug screening process. For instance, if it’s mandatory to collect a urine tests or saliva tests specimen in an observed environment.
Why do Employers Drug Test
In an era where over 30 states allow their residents to use marijuana to manage different health conditions, one is only left to wonder why employers continue to screen for drugs before offering employment to qualified candidates.
Actually, there are no state or federal laws that directly make it mandatory for private employers to drug test their potential employees except in limited situations. One exception here are transportation companies and safety-sensitive industries under federal agencies including the US Coast Guard, the Federal Aviation, and the Federal Highway Administration.
Here are several key reasons why drug screening remains a key component for pre-employment for most employers:
- To minimize legal liability
- In case an intoxicated employee causes injuries to others at the workplace, the employer may be held legally liable and made to make the necessary compensation for the injuries. Frequently, employers will drug test an employee who caused an injury to another employee or company property to determined if impairment was a contributing factor in the accident.
- To get workers’ compensation insurance discounts
- Annual workers’ compensation insurance is a huge cost for a company and it could run from $500 to several thousand. There are different ways through which employers may get a discount on these insurance premiums- one of them is ensuring a drug-free workplace program and environment. For example, some states allow employers to reduce there insurance rates if them implement a drug-free workplace policy which may include testing applicants for positive drug testing results. There’s no better way for employers to enhance this than by ensuring that they hire non-drug users.
- To ensure maximum productivity
- The National Council on Alcoholism and Drug Dependence, says that 70% of those who use illegal drugs are employed. Drug abuse and addiction are said to cost American companies a whopping $81 billion annually. Another shocking revelation by the US Drug Test Center is that 80% of employed drug users support their drug use by stealing from their employers. Many employers implement zero-tolerance drug policies for applicants believing that denying jobs to applicants that have a positive test result help protect the employers from the negative impacts of marijuana in the workplace. This is especially true for applicants for safety-sensitive positions.