Marijuana legalization is a complex issue that leads to workplace questions.
Marijuana Legalization in the US
In the United States, marijuana legalization varies by state. Some states allow for medical marijuana use, while others have passed laws for recreational usage. Marijuana recently became legal for recreational use in Colorado, Oregon, Washington, Alaska, and Washington, DC. New recreational use marijuana legalization for 2016 was proposed in California, Arizona, Maine, Massachusetts, and Nevada. Florida, Montana, Arkansas, and North Dakota put medical marijuana on their ballots. Full legalization may be put on the ballot in Michigan and medical marijuana might be voted on in Oklahoma and Missouri. As a result, the potential “number of people living in a state where marijuana is legal for recreational use could quadruple”. In particular, California, which is the most populous state, could “as a bellwether that seals the tide of legalization across the country”. California was the first state to legalize medical marijuana, and that led to “half the states legalizing marijuana” as of 2016. The popularization of marijuana legalization has increased, with 58% of Americans supporting it.1
Pros and Cons of Legalization
There are concerns, however, about how marijuana legalization is handled. The most important factor is that marijuana is illegal, federally, since it is classified as “a schedule 1 drug”, with a “high potential for abuse and no recognized medical value”. The people who are for “full legalization” say that the “consequences of continued prohibition — specifically, more violent crime and incarceration” are much higher than the risks of abusing pot. If marijuana is legalized, “drug cartels lose out on the profits”. Proponents for legalization note that while there are the risks of overuse, dependence, and (rarely) psychotic episodes, marijuana has not been “linked to any serious ailments—not deadly overdoses, lung disease, or schizophrenia—and it’s much less likely…to cause deadly accidents than the totally legal alcohol”. According to the Journal of the American Medical Association, marijuana can treat muscle spasms and pain. By using marijuana instead of opioids, “legalization could literally save lives”. Those who oppose legalization believe that for-profit companies will “encourage widespread use and abuse”, pointing to the tobacco and alcohol industries as examples. “Big Alcohol” has blocked regulations and tax increases, while marketing the product as “fun and sexy”, and “alcohol is linked to 88,000 deaths each year”. In the marijuana industry, the “heaviest users (are) the most lucrative customers”, which would provide incentive to the pot business to encourage “heavy use and even abuse”.2
How Long Does Marijuana Stay in Your System?
Marijuana detox is a concern for some people who get drug tested for work, such as those with a commercial driver’s license (CDL). Right now, urine testing is the common way to screen marijuana use. THC is the ingredient in marijuana that creates the “high”. Urine tests, however, “detect a different chemical called THC-COOH…a metabolite of THC”, produced when THC is broken down in the liver. THC-COOH stays in the body longer. The cutoff level for this chemical is commonly “50 ng/mL. Less common cutoff levels are 20 ng/mL and 100 ng/mL”. Metabolizing varies per person, and the amount consumed also is a variable, so it is difficult to say how long marijuana will stay in the system. General estimates are that occasional users will test positive for 4 days, frequent users for 10 days, and extreme cases for 67 days. Detoxing from marijuana is a subject that comes up often when drug testing is involved. There are many companies online that give information about how to detox from marijuana, and some even sell marijuana detox drinks. People should be skeptical of “urine cleansers”. Some people try to beat the drug test by drinking a lot of liquids, which would dilute the urine, but the sample may end up spoiled. In fact, “urine that is too diluted may be…rejected by the testing lab” as potential tampering.3 There are other types of drug tests, including saliva, blood, and hair. For a single use or for regular use of marijuana, it will take about a day to leave the saliva. For a single use with blood testing, the drug will show up for a day, and up to a week for regular uses. A single use of marijuana is unlikely to show up in a hair test, but for regular users it can be detected for 3 months. Even with the urine test, one-time users can be detected up to 30 days, and chronic users can test positive for 12 weeks.4
Marijuana Legalization and the Workplace
“Most state statutes expressly carve out exemptions for employers that prohibit any use of marijuana in the workplace”, and some jurisdictions allow for the employer to terminate an employee for testing positive. There are still some unclear rules about whether or not an employee can be disciplined for off-hours/off-site use if they have a “valid prescription” for medical marijuana, or recreational use in states where that is legal. Those laws vary by state. This is a complicated question, also, when an employee is considered “disabled” under the ADA (American with Disabilities Act). No law protects an intoxicated employee at work, but testing can still appear positive when the employee is “no longer ‘under the influence’ of the drug”. Even more challenging is the question of what to do about federal contractors. For those types of workers, the marijuana policies fall under the “federal Drug Free Workplace Act”. The DFW Act has a zero-tolerance policy for illegal drugs, and marijuana is illegal, federally. Therefore, “no state law may require a federal contractor to accommodate marijuana use”. This can lead to conflicts with state laws, as well as uncertainty, and these issues will likely be decided by the court system. If the courts side with federal law, the zero-tolerance policies will continue, but if the courts “look at medical marijuana laws as a state sovereignty issue”, then “employers may have to wade through a dual system in which medical or off-hours recreational marijuana use has to be tolerated”. This will affect the drug testing “intoxication” standards, and whether or not employers will test at all.5