Drug Testing for Marijuana: An Arbitrary & Capricious Practice?


Although congressional efforts to decriminalize marijuana remain ongoing, we have seen the legalization of marijuana in several states both for medicinal use and for recreational use. In as early as 2012 following election day, Colorado became the first state to legalize the use and sale of marijuana. Since then, it isn’t uncommon to see “marijuana tourism,” a term used to describe consumers traveling to use marijuana in those progressive states and territories that legalized its recreational use. Despite the trend of states legalizing marijuana, employers still screen employees and prescreen potential employees for marijuana usage. Is such testing justified or is the practice arbitrary or even adverse to society? 

Drug tests are optional tests for employers who use them to identify whether employees or prospective employees are using illicit drugs such as methamphetamines, THC which includes marijuana, cocaine, opiates, phencyclidine, and others as requested. These tests may also be in the form of (1) random tests; (2) periodic testing; (3) post-accident testing; (4) reasonable suspicion testing; (5) follow-up testing; or (6) pre-employment testing. 

The purpose of these tests is to reduce workplace hazards and improve safety as well as productivity, which can be compromised with the use of drugs. Drug use can cause symptoms such as an inability to focus, needless risk-taking, and withdrawal which for both an employer and employee can be detrimental, especially in more blue collar jobs. For example, studies have shown the use of Marijuana in the transportation industry led to the increase of vehicular crashes and fatal collisions. Drug testing is also used as a tool to deter drug use in the first place. Data compiled by Health Services Research in 2007 shows that employer drug testing had a measurable effect in deterring employee drug use. 

Laws surrounding drug testing and employment vary by state. Usually, employers are given much discretion in whether they implement drug tests, subject to federal regulations in safety sensitive positions; however, many employers continue to test for marijuana to ensure that employees are not coming to work under the influence and do not pose any danger. 

In the 6 states where  marijuana is neither legal for recreational or medicinal purposes, testing for marijuana makes sense. But for states that have legalized marijuana, the need for drug tests has become harder to see. Although legal, marijuana use may still introduce danger into the workplace so employers are generally able to give drug tests to ensure employees aren’t coming to work under the influence, usually in the form of reasonable-suspicion tests. This test allows for detection of marijuana upon evidence of drug use or reasonable cause. Such a standard can be tricky, but employers must look at objective facts that would suggest to a reasonable person that an individual is using drugs against company policy.

The reasonable-suspicion standard found its origins in the 1968 U.S. Supreme Court Case, Terry v. Ohio, in which the court held a search is reasonable when “there are specific and articulable facts, from an unbiased source, conducted out of reasonable caution, and based on something ‘more than a hunch.’” Today, reasonable-suspicion testing is considered an effective method in deterring employees from being under the influence at work. For employees, there is an inherent protection built into the standard itself with courts holding that reasonable suspicion must be more than speculation. Otherwise, these drug tests may violate the Fourth Amendment. In addition, For those who legally use marijuana, employers are unable to take disciplinary action for a positive test; however, they may take disciplinary action for an employee’s behavior at work

While ensuring workplace safety is a justified reason for implementing reasonable-suspicion tests, pre-employment drug tests may be harder to explain. Whether or not employers can refuse to hire a job candidate based on a positive marijuana test varies by jurisdiction. Many states protect medical marijuana users by making it illegal to discriminate against a job candidate based on their use of marijuana. Some states and cities extend this protection to recreational users. Other times, no protection is afforded to either medical marijuana users or recreational users. Being able to refuse a job candidate due to their marijuana usage is problematic because it restricts an individual’s job prospects, even if they are qualified and their marijuana usage has no impact on the work. This issue is exacerbated when you note that marijuana can be detected by drug tests from one day after marijuana use up to ninety days after marijuana use, depending on previous usage and the type of drug test. This means that even job candidates who do not use marijuana anymore can be discriminated against. 

In jurisdictions that do protect either medical and/or recreational marijuana users, the protections available vary. States like California have laws that protect prospective employees, requiring drug tests to follow conditional offers. Even then, an employee may want their use of marijuana to be kept private. Employees may be afraid of on the job discrimination as a result of their employer knowing they use marijuana. For example, an employer may give reduced hours to someone who they know is a regular user. New Jersey provides that employers can’t refuse to hire anyone for the legal use of marijuana outside of work. While this may in theory protect marijuana users, the New Jersey Law seems unlikely to succeed. Employers can still hold bias and refuse to hire employees, giving a pretext for discrimination. A pretext is a false reasoning given to cover up the actual reasoning. As a result, if an individual discriminated against wants to seek legal redress, they would have the burden to prove the pretext, which may be difficult pre-employment. States like New York ban pre-screening for marijuana altogether, subject to security sensitive jobs. A complete ban like New York’s may be the best course of action as it, at the very least, reduces the possibilities of on the job discrimination that may come with the California law and pretextual discrimination which may come with the New Jersey law. While some may fear a complete ban on pre-employment marijuana testing could lead to increased workplace hazards due to employees being under the influence of marijuana, it is likely that the deterrence of reasonable-suspicion testing will be enough to subdue this outcome.

With the overall trend of legalizing marijuana use, drug testing for marijuana is becoming an increasingly complex issue. Depending on the state, drug tests can be used by an employer as a criterion for hiring, despite the legality of the marijuana, due to the various, limited protections given to employees. As a result, it may be appropriate for states to ban marijuana drug tests during pre-employment altogether, similar to New York state law, while still permitting employers to drug test on-the-job employees through reasonable-suspicion tests. Banning pre-employment marijuana testing while retaining reasonable suspicion testing would protect consumers without compromising workplace safety. 

About the Author: Inderjit Singh is a 2L at Cornell Law School. He is interested in the technology industry, the sports industry, and working with emerging companies. This year, he is serving as an Online Associate for Cornell Law School’s Journal of Law and Public Policy’s The Issue Spotter

Suggested Citation: Inderjit Singh, Drug Testing for Marijuana: An Arbitrary & Capricious Practice? Cornell J.L. & Pub. Pol’y, The Issue Spotter, (November 5, 2021), http://jlpp.org/blogzine/?p=3788. 

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