Drug Testing for Marijuana: Do You Really Want To Know?

Positive tests for marijuana in employment drug screening jumped 6.2% nationally from 2012 to 2013, according to a recent study from Quest Diagnostics.

Most employer drug testing programs provide for, among other things, random testing for the presence of marijuana in an employee’s system, with many owners and contractors mandating that such random tests be conducted (or at least provided for). Employees testing positive for marijuana metabolite generally are subject to discipline up to and including termination. In the absence of an owner, contractor or government entity mandating marijuana testing, however, the question arises: with the growing national leniency toward legalization of recreational marijuana use, do employers really want to random drug test their employees?

2298921212_001c4da0ddWhile no one is advocating allowing marijuana-impaired employees on the job, urine and blood tests only monitor for the presence of marijuana metabolite and not present impairment. Marijuana metabolite stays in an employee’s system for 3 to 6 weeks after marijuana use. Thus, several employers have stopped randomly testing for marijuana (though they continue to test post-accident and based upon reasonable suspicion of impairment) based on the fact that an employee may not be impaired on the job, but may fail a test anyway as a byproduct of recreational activities. Testing for the presence of marijuana in any circumstance, however, may open a Pandora’s Box of unwanted employment issues. For example, the possibility exists that a positive marijuana test result could arise from an employee’s proper use of medical marijuana in one of the jurisdictions in which such medical use is legal. If so, taking an employment action against such an employee may be tantamount to a violation of the ADA; the employee may have been using medical marijuana for the treatment of a protected condition.

Further, an employee could test positive for marijuana as a result of a vacation to Colorado or Washington, where recreational use of marijuana is legal. With such a growing national leniency towards marijuana use, should an employer care if the test does not evidence impairment at work?

If a reliable employee tests positive for marijuana, an employer with such knowledge might feel compelled to take some action against the employee regardless of their stellar on-the-job performance. This is becoming an issue in a market where skilled, qualified workers are scarce. Employers may want to think twice about adopting screening methods that could exclude workers for activity that does not affect job performance, and further, a positive test result could open up an unwarranted ADA issue or force an employer into following inconsistent policies.

 


Courtesy of Andrews Myers – leading law firm in Houston, TX whose construction and commercial real estate attorneys are prized for their legal talent and renowned for being personally committed to helping clients succeed. As a mid-sized law firm that encourages cooperation across legal disciplines, lawyers develop and maintain personal relationships with each and every client. For more information about Andrews Myers, contact cybirdwell@andrewsmyers.com or check out their website – http://www.andrewsmyers.com/.
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