End of pre-employment drug testing doesn’t mean you can’t still be fired for marijuana

Although some jurisdictions across the United States are moving toward a policy that prevents pre-employment drug testing for marijuana, this amendment to that whiz-quiz way of life is not set up to ensure that everyone in the workforce that uses this substance is in the clear. Although there are many cases where drug testing for weed, or any other drug for that matter will not apply, the current marijuana ban under federal law demands that some workers pee clean, no matter what.

America rejoiced last week when Nevada became the first state to ban drug testing for marijuana as a pre-employment requirement. This means companies that traditionally tested for cannabis in the past before offering someone a job may no longer include the herb in their drug panels.

New York City established a similar ordinance back in April. It is mostly designed to do what Nevada has done by eliminating marijuana from the drug testing equation. However, there are specific jobs in both of these jurisdictions where passing a drug test for marijuana is needed before they can go to work.

Police officers, peace officers, people who supervise children, any position that requires a commercial driver’s license, nurses and a variety of others cannot test positive for weed – not ever. Furthermore, companies with federal contracts are also required to make sure all of their workers are marijuana free.

In spite of state law, there was a federal statute put on the books during the Reagan Administration back in the late 1980s that requires certain employers to test for marijuana as a prerequisite to employment. This policy calls for companies to inform their workers “that the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited in the covered workplace.” It also allows companies to take action “against employees who violate the policy.”

Even in a jurisdiction that has stopped pre-employment marijuana testing, an employee can still be fired down the road due to their cannabis use. Any worker involved in an accident is probably going to be tested for marijuana. There are federal rules under the Occupational Safety and Health Administration (OSHA) that necessitates drug testing in the event of certain incidents. State workers’ compensation laws also call for drug testing. Although tweaks to these rules have been made over the past few years, drug testing in the event of an accident is still very common.

“Most instances of workplace drug testing are permissible under § 1904.35(b)(1)(iv),” OSHA wrote last year in a memo.

In the event that a workplace injury is found to be the result of someone being under the influence of marijuana (even though there is no effective test to prove an employee was THC impaired on the job), that worker can be disciplined up to and including termination. There could also be situations where companies aren’t allowed to conduct pre-employment pot tests, but they can still make random drug testing a part of their daily operation. A prospective employee might be able to skate through the interview process by not having to pass a drug test for marijuana, but he or she might not be so lucky as to escape those dreaded random pot screenings to come.

Long before Nevada passed a law banning pre-employment marijuana testing, Caesar’s Entertainment, which operates 50 casinos and hotels across the nation, announced that it was eliminating marijuana from the drug testing process. But “[It’s] very different when you’re at work,” explained Rick Broome, vice president of communications. “If you’re high at work, we will test. And if you have the presence of drugs in your bloodstream, it can be cause for dismissal.”

Just be aware that drug testing for marijuana is still possible in jurisdictions that have passed laws preventing this action as part of pre-employment qualifications. You might be able to get the job, but rest assured, there are still plenty of ways marijuana can get a person sent to the unemployment line.

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