Drug Testing in the Workplace

Workplace Drug Testing Employee Rights and Concerns (Cont.)

Part 3 of 4 is below. Among other things, this part briefly addresses drug detection time, drug testing cutoff levels, and medical marijuana and other prescription medications.

Drugs Screened in a Workplace Drug Test

Most of the illegal drugs and optionally, alcohol and several commonly-abused prescription medications, are screened during workplace drug testing. See Workplace Drug Testing Cutoff Levels for a list of drugs that are typically screened.

Drug Detection Time in a Workplace Drug Test

Drugs or the resulting chemical changes (metabolites) stay in your body for some time after use, without intervention. How long after drug use that a test can detect it, is called drug detection time.

Drug detection time depends on a variety of variables. Regardless, drug detection time estimates have been worked out by the National Institute on Drug Abuse (NIDA), a division of the U.S. Department of Health and Human Services (HHS).

Medical Marijuana and Workplace Drug Testing

Over a dozen states have passed so-called medical marijuana laws that authorize marijuana (also marihuana) as a medical treatment. However, marijuana (cannabis) is still an illegal drug under Federal law — a key factor — and states are prohibited from authorizing violations of Federal law.

Subsequently, medical marijuana use in connection with employment is increasingly becoming a matter of court debate, raising relatively new and sticky legal, ethical, and liability issues.

For example, it is not yet clear what role the Federal American's with Disabilities Act plays in "reasonably" accommodating disabled employees who need to smoke or ingest medical marijuana on the job. In states that didn't specifically address the issue in medical marijuana laws, it is also not yet clear if employers may justifiably "discriminate" against employees and job applicants for failing workplace drug tests due to state-authorized medical marijuana use outside of work hours.

Employers with solid drug-testing policies in place regarding medical marijuana use might be able to justify discriminating against employees and job applicants as indicated in the policies, because, again, a key factor is that marijuana is still an illegal drug under Federal law.

As a result, you'll likely have to challenge the decision in court to discover whether or not an employer justifiably fired, refused to hire, or otherwise disciplined you because you failed a drug test due solely to state-authorized medical marijuana use. To find out if you have a valid case in the first place, start by consulting an employment attorney who knows your work state's medical marijuana law.

Update: Voters approved the Arizona Medical Marijuana Act under Proposition 203, the newest medical marijuana law to pass at this writing. The law specifically prohibits employment discrimination against medical marijuana cardholders for failing workplace drug tests due to marijuana use, unless cardholders used, possessed or were impaired by marijuana on the employment premises or during work hours. For more information, see Medical Marijuana Program by the Arizona Department of Health Services.

Update: In the case of Roe v. Teletech Customer Care Management, the Washington State Supreme Court decided that the state's Medical Use of Marijuana Act (MUMA) does not protect employees from wrongful discharge when employers fire them for failing drug tests due to legitimate medical marijuana use off the job.

Prescription Medications and Workplace Drug Testing

Although workplace drug testing procedures typically account for it, valid use of prescription medications still might trigger positive test results for commonly-abused drugs, depending on the medication. For example, a prescription pain reliever that includes the narcotic codeine or morphine might cause you to fail workplace drug testing for opiates.

So, be sure to tell your "testers" if you are taking one or more medications prescribed by a doctor. Also make sure that they put it in writing, if they don't give you the opportunity.

If you fail a drug test solely because you're taking a valid prescription medication that you're not abusing, but an employer disciplines you or refuses to hire you anyway, then you might have grounds for a lawsuit. That's especially true under the American's with Disabilities Act. Consult a lawyer about that.

Passive Drug Use and Workplace Drug Testing

Passive drug use is innocent, unintentional use. For example, incidentally inhaling ambient marijuana smoke at a rock concert is passive use. So is accidentally absorbing a drug through the skin, such as by handling a dollar bill that someone else rolled up to snort cocaine.

But, you have little to worry about. Passive "drug user" specimens typically measure well below the cutoff levels that trigger failing drug test results. For example, passive inhalation of marijuana smoke measures at about 5 ng/ml in a urine specimen, which is well below the typical 50 ng/ml cutoff level in an initial test. See Workplace Drug Testing Cutoff Levels for more information.

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