Employer Drug Testing – Marijuana Use

… Marijuana Use and Drug Testing, Drug Free Workplace …Update on Employer Drug Testing – Current State of Marijuana Use 

… June 2014 …


  • 18,900,000 Americans use marijuana which is a Schedule 1 illegal drug
  • Marijuana use has significantly increased since 2007 – 5.1 million users and 2012 – 7.6 million uses
  • Two States – Washington and Colorado allow medical marijuana and 14 States have pending legislation
  • 23 States plus Washington, DC have enacted medical marijuana laws and 16 States have pending legislation
  • THC or Delta 9 Tetrahydrocannabinol (THC) is the chemical responsible for marijuana’s mind-altering effects

Case Law:

So far court cases have upheld that employers are not obligated to accommodate the use of medical marijuana—even outside the workplace.  Several medical marijuana states have implicit employee protections in place, where the law mentions only on-the-job consumption or impairment as grounds for termination, these include Colorado, Hawaii, Michigan, Montana, New Jersey, New Mexico and Vermont.

California  – Supreme Court decision, Alberto R. Gonzales, Attorney General, et al., Petitioners, v. Angel McClary Raich et al. No. 03-1454. Supreme Court of the United States. Decided June 6, 2005. 125 S.Ct. 2195, in most states with medical marijuana laws, an employer may safely refuse to accept medical marijuana as a reasonable medical explanation for a positive drug test result. (This case is generally referred to as Ashcroft v. Raich or Gonzales v. Raich.)

California – Ross v. Ragingwire Telecomm., Inc., 42 Cal. 4th 920 (2008). The California Supreme Court held that that California law does not prohibit an employer from refusing to employ a medical marijuana user, even if his marijuana use is permitted under California law.

Colorado – Coats v. Dish Network, LLC, 303 P.3d 147, 2013 Colo. App. (2013). The Colorado Court of Appeals upheld an employer’s termination of an employee for his off-duty medical marijuana use, concluding that because marijuana remains illegal under federal law, marijuana use is not “lawful” under Colorado’s Lawful Activities Statute.

Oregon – Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 348 Ore. 159, 230 P.3d 518 (2010). The Oregon Supreme Court held that employers are not obligated to accommodate the use of medical marijuana by disabled or other employees. They found federal law preempts Oregon’s legislation authorizing medical marijuana use.

Washington – Roe v. TeleTech Customer Care Management (Colorado) LLC, 171 Wn.2d 736, 257 P.3d 586 (2011). The Washington Supreme Court held that Washington’s Medical Use of Marijuana Act did not require an employer to disregard its zero tolerance drug policy. Plaintiff’s wrongful discharge claim was denied.

How long does marijuana stay in your system?

There is no hard answer.  There are various factors that determine how long THC stays in the human body, these include weight, body fat, frequency of use and the amount used.  Drug testing detection time periods for marijuana use will vary based on several factors including but not limited to the amount of use, frequency of use, personal dietary habits, personal metabolism, potency of substance, and method of ingestion. Oral fluid drug testing has the shortest detection time 1 -12 hours, urine drug testing 2-3 days and up to several weeks, hair drug testing 7 – 90 days.

What Should Employers be doing about Marijuana and Drug Free Workplace Policies?

It is important for employers to have their drug policies reviewed and revised as necessary to make clear to current employees and new hires that the use of marijuana, along with all other illegal drugs is prohibited, even outside the workplace.  In States allowing recreational marijuana, without specific direction from employers, employees may assume that, like alcohol, their recreational use of marijuana is permitted so long as it does not impact their work.  Here are some specific recommendations: 

  • Update your Drug Free Workplace Policies to clearly spell out medical and recreational marijuana policies
  • Make sure all existing employees and all applicants coming on board are aware of the employer drug-free workplace
  • If accommodations are to be made for medical marijuana, It is important to have clear policies, processes and procedures for making such a reasonable accommodation determination and to apply these fairly and consistently.
    Identify safety sensitive positions in your company and clearly state the policy for working in these positions.
  • Ensure your drug free workplace policy is compliant with state laws
  • Work with an expert to help you with best practices for marijuana and drug free workplace

For assistance with drug free workplace policies and medical or recreational marijuana, call Joe Reilly, National Drug Screening at 866-843-4545.

Employer Drug Testing - Marijuana Use
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