Options for Medical Marijuana Patients Facing an Employment Drug Screening

What if you were offered a killer job and the only thing standing between you and that job is the employer’s insistence that you be drug tested before starting work for the company. While you may not engage in illegal drugs, you do smoke medical marijuana on a regular basis and further, the medical marijuana you smoke was prescribed to you by a licensed medical doctor for a physical ailment your doctor believe medical marijuana will provide relief.

The issue presents a troubling dilemma. Under California law, an employer may not unlawfully discriminate against existing employees or prospective ones based their medical condition. In our situation, should our job seeker test positive for marijuana, which will likely happen, the job seeker could be denied employment for testing positive for marijuana, whether it was medically prescribed or not. Complicating matters further, consider that chemical traces of marijuana (THC) can and usually do remain in your system anywhere from three to thirty days from the day the marijuana was originally consumed. This means the job seeker, so long as the drug therapy continues, will not able to test clean for marijuana, leaving the job seeker at a disadvantage in a already tough job market.

While most employers within and outside the state of California consider employee drug testing, credit checks and reference screening to be an essential and legitimate right employers. Medical marijuana advocates and some state legislatures are claiming this is unfair and unlawful. Either way, if you are an employee facing a drug-screening test and you still use medical marijuana, you need to be informed of your options.

Currently, there are thirteen states that legally permit the use and safe access to medical marijuana. These states include: California, Alaska, Colorado, New Mexico, Rhode Island, Hawaii, Maine, Michigan, Montana, Oregon, Vermont and the state of Washington. Each of these states have legislated their medical marijuana laws slightly differently but all of them share certain common characteristics.

Most of the thirteen require a current written medical recommendation for the use of medical marijuana by a licensed medical doctor. The doctor must have examined you and concluded with some medical degree of certainty that you would medicinally benefit from the use of medical marijuana. Under California law, the state now provides for the voluntary registration of qualified medical marijuana patients and their primary caregivers through a statewide medical marijuana identification card system. Medical marijuana identification cards allow law enforcement to identify and verify that cardholders are able to cultivate, possess and transport certain amounts of marijuana without being subject to arrest. Marijuana dispensaries and clinics require patients to produce a valid medical marijuana card before being allowed to purchase medical marijuana.

People who use medical marijuana should know that there is no easy way of knowing, after submitting to a drug test, exactly how long the medical marijuana will remain in the blood system, since a persons method of marijuana use, quantity of use, resistance, body weight, and overall rate of metabolism play an important role in determining the rate at which the body eliminates marijuana from it’s system.

Most experts agree however, that the detectable time range for the presence of marijuana can be anywhere from seven to thirty days after it’s use. Moreover, detection time does not mean that all of the marijuana has been fully metabolized by the body, but rather, the presence of marijuana, at the time of the testing period, can no longer be detected in your urine.

A common approach to passing a urine test is to substantially increase your fluid intake thereby diluting the concentration of marijuana in the test sample, below the level of chemical detection. Approximately one hour before testing, fill your bladder up with as much fluid as possible. Water is considered best. Many people choose to literally sweat the marijuana out of their system by drinking substantial amounts of water and then by performing aerobic based exercise to sweat the THC out. Finally, be careful not to give a urine sample first thing in the morning, since drug metabolites tend to build-up in the late evening hours and you can end up with an elevated and therefore positive test result.

Another option is to consider purchasing a marijuana “clean test” product, which is said to eliminate all evidence of THC from your system, and allowing you to test negative for the presence of marijuana. These types of products are available online and have been used with some degree of frequency and success.

Under California law, and most other states, employers can legally demand that an employee submit to a marijuana and drug test screening. Similarly, people already employed with a company can be asked to submit to a test. If you fail the drug test and are found positive for marijuana, under the Fair Employment and Housing Act, it is legal for the employer to terminate you for failing a drug test, Ross v. Ranging Wire, Telecom, Inc. (2008) 42 Cal.4th 929, 933. In summary, in California, it is an employers' established right to demand drug testing as a precondition to employment, as well as continued employment.

Finally, if you are thinking of objecting to submitting to a drug test, and you think it will cost you the loss of a valuable job opportunity, you might wish to reconsider objecting to the drug test. Many people in this type of situation have chosen not to take the risk and instead stop their use of medical marijuana in favor of securing employment.