Some employers require prospective and current employees to take drug tests. The idea is to encourage a safe work environment and discourage illicit drug use. The reality is often more complicated than that. This is especially true when it comes to cannabis. THC metabolites can remain stored in the body for many weeks in people who consume cannabis frequently. But as anyone who’s ever smoked pot knows, your state of intoxication only lasts a few hours. Consequently, people can screen positive for THC even if they are no longer experiencing THC’s effects.   In most states with legal pot laws, employees are not protected from termination related to their cannabis consumption. Employers are far and wide given discretion to use a positive cannabis test as a reason to fire their employees.  Here's what you should know if you fail your employee drug test.

Ask to Take The Test Again

If you really haven't been consuming THC or if you think you consumed it so long ago it couldn't possibly show up, you could be experiencing a false-positive result. While it's incredibly unlikely, non-steroidal anti-inflammatory drugs (NSAIDs) such as Advil or products containing hemp and trace amounts of THC have been thought to cause false-positive THC tests. It's also possible, while again highly unlikely, that secondhand smoke could cause you to fail your drug test. According to a study by the Journal of Analytical Toxicology, only when subjects were exposed (for hours) to high concentrates of secondhand cannabis smoke in a non-ventilated room, did they test positive for THC. In some states, employers are required to share positive test results within a certain time frame and give the applicant a chance to contest the results and take another test. If your state upholds these kinds of laws and you believe that your positive screen is inaccurate, you have the right to refute the results and ask for the opportunity to submit another test.  Regardless if your state mandates it, if you're very certain you're outside the range of time that THC could be detectable, it might not hurt to ask again.

You Might Lose The Job Offer

Some companies extend offers with the contingency of a clean drug test. If you fail a pre-employment drug test, the employer will likely rescind the job offer. Though disappointing, that is the end of it. It’s extremely unlikely that you will receive follow up requiring further (or legal) action.  If all else fails, continue applying for jobs. If possible, stop consuming cannabis until you have taken and passed the next drug test. Although this can be extremely difficult for medical patients who rely on cannabis as medicine, it is also your best shot at avoiding a positive drug test. 

Your Employer Could Fire You

This is the most common response to a failed drug test. Although it doesn’t always happen, you should be prepared for the worst. Typically, when you agree to work for a company, you have also agreed to the fine print stating that you may be subject to a random drug test. If you are randomly required to take a drug test and suspect you will fail it, you might consider applying for new jobs immediately.  If you fail and are fired, you have options:

• Contest the results and ask to take a new test. As noted above, only do this if you feel confident that the results are wrong. Many states require employers to allow employees this opportunity.
• Have a sincere talk with your supervisor. Even if your employer doesn’t start out with a flexible attitude, you may be able to convince them to give you a chance. Offer to take the test again in a few weeks and commit to abstaining from cannabis until then. If you’re a medical user, explain your condition. Be open to receiving counseling or substance abuse treatment. Whatever you do, don’t come up with some strange excuse for the presence of THC in your urine or blood unless it’s true. Explaining your test results with a made-up story rather than being honest about your cannabis use is not going to give your employer a reason to trust you.
• Take your employer to court. Find out if your state does have some protections for cannabis users in the workplace. Termination based on a failed drug test will interrupt your life and lead to both tangible and emotional losses. Your lawsuit may help to change the legal protections given to employees who consume cannabis responsibly. If you believe you have been treated unfairly, talk to an attorney about the viability of your case. Lawsuits are expensive and time-consuming, but you wouldn’t be the first to take that step.

Your Employer Might Work With You

Not all failed drug tests lead to termination. Although there are not many legal protections for cannabis users when it comes to employment, employers are aware that employees may file lawsuits for wrongful or unfair termination. While the courts more often than not side with employers, a New Jersey case involving a man terminated by online retail giant Amazon is evidence that cannabis use, especially medicinal, is not a black and white issue.  If your employer is willing to work with you, you should be prepared to share the necessary information about your cannabis use. If you are a medical user, it may be beneficial for you to have your medical marijuana card handy. While it is illegal for your employer to obtain your medical records without your consent, you have the right to share whatever information you think is necessary. It may be necessary for you to share some information about your illness if you want your employer to accommodate your cannabis use.  In some states, employers are prohibited from firing an employee for a first-time positive drug screen. Instead, employers are required to help employees participate in a substance abuse treatment program. Your employer may require you to participate in some sort of drug rehabilitation program and then take another test. 

No, Drug Tests Aren’t Fair.

It’s not uncommon for employees to get together after work and enjoy a few (or more than a few) alcoholic beverages. It wouldn’t be unusual for a manager or business owner to participate in the festivities. If it’s not during work hours, alcohol consumption is rarely a cause for concern.  However, a person consuming cannabis outside of work hours can be penalized for their cannabis use even if cannabis is legal in their state and the consumption occurred outside of work hours. This isn’t fair, but laws legalizing cannabis use are young.  There are ways to increase your chances of passing a drug test. Additionally, some jobs are less likely to require drug tests than others. In the long term, protection for employees who responsibly use cannabis will be sorted out through legislation and the courts.