In a Haze – Clearing up Misconceptions in Drug Testing

Andrew Berry

In 2014, a man in Spokane, Washington became the first person to lose a job for using recreational marijuana. The man, who waited in line to be the first customer at a dispensary, appeared on a local newscast both purchasing and consuming marijuana.¹ Although he was later reinstated after his employer claimed an internal mix-up, his story foreshadowed the murky waters that would develop around marijuana use and employment. In the 10 years since Washington followed Colorado’s footsteps in legalizing recreational marijuana, more than 20 states have also legalized recreational marijuana use.² Other states have permissive medical marijuana laws that also allow for higher consumption in the overall population. And in just the last two years, some states have considered or passed bills that protect employees who use marijuana in their free time, including during the hiring process.³

Many employers, especially those with locations in multiple states or in states with new employee protections laws, face multiple sets of rules and regulations they must abide by to keep their drug screening program compliant. But these employers don’t have to face these frustrating issues alone. An experienced occupational health provider like Concentra® should offer drug screen options that both abide by federal and state laws and keep employees safe on the job.

A legal web

As of July 2024, states can be sorted into three general groups when it comes to recreational marijuana. The slight majority of states, 26, do now allow recreational use.⁴ Many of these states, however, have active medical marijuana programs or, like North Carolina, have decriminalized possession of the drug. The other half of the country, 24 states, have some form of legalized marijuana. Of these 24 states, five – California, Minnesota, Montana, New York, and Washington – have specific laws that protect employees off-the-clock marijuana use; three more states – Connecticut, New Jersey, and Rhode Island – have the protections directly written into the recreational use laws themselves.⁵ These laws only protect off-the-clock use – random, reasonable suspicion, return-to-duty, and follow-up testing are allowed.

Although state laws have become laxer when it comes to marijuana usage, federal law still prohibits use. According to the United States Drug Enforcement Administration (DEA), marijuana remains a Schedule I drug.⁶These are defined as drugs with no currently accepted medical use and a high potential for abuse – other drugs on the list include heroin, LSD, and ecstasy.

Federal testing standards

Any state laws do not supersede federal laws or programs – including rules set by the Federal Motor Carrier Safety Administration (FMCSA) and Department of Transportation (DOT). FMCSA and DOT rules requires that persons subject to the commercial driver’s license (CDL) requirements and their employers follow alcohol and drug testing rules. This includes transportation-related employees in the following settings:⁷

Anyone employing CDL drivers to operate commercial motor vehicles (CMVs) on public roads
CDL drivers who operate CMVs on public roads
Interstate motor carriers
Intrastate motor carriers
Federal, State, and local governments
Civic organizations (disabled veteran transport, boy/girl scouts, etc.)
Faith-based organizations

Drivers can expect pre-employment drug tests and post-accident testing. The standard DOT drug test is a 9-panel, which tests for marijuana, cocaine, heroin, MDA-analogues (ecstasy), opiates, oxycodones, phencyclidine (PCP), semi-synthetic opiates, and amphetamines & methamphetamines.

How states protect off-the-clock use

Although each law varies slightly in language, they all have the same intent – to outlaw discrimination against a person in hiring, termination, or any term or condition of employment for an employee’s use of cannabis and cannabis products off the job and away from work. The protection includes failing an employer-mandated drug screening for having non-psychoactive cannabis metabolites in their hair, blood, urine, or body fluids.⁸ The key element in this language is the use of the term “non-psychoactive cannabis metabolites,” which help determine if a person if actively (or recently) impaired at the time of testing.

Testing specifics

In the context of a drug screen, marijuana is made up of parent THC, the part of marijuana that produces a high, and THC-COOH, a metabolite (a byproduct of the breakdown of THC) that has no role in impairment. THC leaves the body fairly quickly and typically isn’t detectable 24 - 48 hours after marijuana use.⁹THC-COOH can bind the fat molecules in a person’s body, helping it stick around for weeks or even months after use.

Urine and hair drug screens for marijuana check for the presence of THC-COOH, not parent THC. That means these tests are useful for zero tolerance drug screen programs and testing programs looking for previous use. However, these test methods could run into trouble in states that protect off-the-clock use as they cannot differentiate between marijuana consumed the night before versus marijuana consumed just before a shift started.¹⁰ Furthermore, due to the way the body breaks down parent THC, there is currently no method available to tweak urine and hair testing methods to test for parent THC.

A way forward

While it may be tempting to give up on drug testing, employers with employees in the eight states that protect off-the-clock marijuana usage have several paths they can take to adapt:

An employer could continue to use their current urine or hair drug screen panel that contains marijuana. However, if the marijuana test shows positive, there is nothing the employer could do to penalize that employee, as there is no way to prove the usage occurred off the job or away from work. A standard 5-panel drug screen would still help identify use of cocaine, opiates, phencyclidine (PCP) and amphetamines & methamphetamines.
An employer can remove THC from the panel in urine/hair drug screen. A strong occupational health partner should offer multiple drug screen options that exclude marijuana.
An employer can switch to oral fluid specimen tests. Unlike urine and hair drug screen, oral fluid drug screens test for parent THC, meaning they are able to detect most drugs starting soon after ingestion and extending for 24-48 hours after use.¹¹ When compared to urine testing, oral fluid also has a shorter day range (one to two days compared to one to three) and quicker window (one to two hours after use compared to two to six) for detection.
An employer could use a combination of the two testing types. They could use a standard 5-panel drug screen in states that don’t protect off-the-clock use and a 4-panel no THC test in states that do. Employers set on testing for marijuana in protected states could use a 4-panel no THC test in combination with an oral fluid test for only THC.

A partner who can help

The legal web surrounding marijuana use can be unwound. At Concentra®, we offer a variety of drug testing options at our nearly 550 locations across the country. We can work with employers to accommodate multi-states drug testing programs that help them stay compliant while also keeping employees safe.* We use the latest FDA-approved automated and instrumented technology to ensure objective test results are delivered to you quickly and securely, including oral fluid testing in states where it is legal. Learn more about our drug testing options and then contact a Concentra representative to get started today.

*Concentra can only offer guidance on drug testing and acts as solely as a collection site. Employers are responsible for their drug screen programs and Concentra is not responsible for regulatory compliance. Employers should consult with their legal counsel and ensure their drug testing policy is up to date.

NOTES

“First person to legally buy weed in Spokane gets his job back,” by Clare Kim. MSNCB, July 10, 2014.
“Where marijuana is legal in the United States,” MJBizDaily, November 23, 2023.
“New 2024 laws protect California workers who use cannabis off-the-job,” by Katy St. Clair. CBS News, December 23, 2023.
“Maps show states where weed is legal for recreational, medical use in 2024,” by Kerry Breen. CBS News, May 17, 2024.
“Off-Duty Conduct Protections for Employees’ 4/20 Celebrations: A Look at the High Points of a Few States’ Marijuana Laws,” by Jennifer L. Pacicco and M. Tae Phillips. Ogletree Deakins, April 20, 2024.
“Drug Scheduling,” United States Drug Enforcement Administration, n.d.
“Drug & Alcohol Testing Program,” Federal Motor Carrier Safety Administration, n.d.
AB-2188 Discrimination in employment: use of cannabis, California State Legislature, 2021–2022 session
“How Long Does Marijuana (Weed) Stay in Your System?” by Dan Wagener. American Addiction Centers, May 10, 2024.
“How Long Does Weed Stay in Your System?” by Carly Vandergriendt. Healthline, April 23, 2024.
“What you need to know about oral fluid drug testing,” Quest Diagnostics, November 12, 2019.