Under most state law it is NOT illegal for the employer to either refuse to hire or terminate an employee based on marijuana use, whether such marijuana has been prescribed by a physician or not. Further, it is currently legal to deny unemployment benefits if the employee was terminated for testing positive for marijuana. However this issue is currently under appeal with the California Supreme Court. Depending on how the California court rules, it is likely that other medical marijuana states will follow suit.
Even though marijuana is considered by many as the most benign and commonly used illegal drug in the United States, it is also the most problematic of drugs for employer testing purposes. This is because the presence of THC can remain in a person’s blood stream for up to a month after it was smoked or ingested. The speed at which THC actually leaves your bloodstream (and therefore your urine) will depend on the speed of the individual’s metabolism. Since the rate of metabolism can vary substantially between people, testing for drug use on the job, at the time you were actually on the job, can be quite problematic for the employer. Specifically, a person can use marijuana on Sunday, while off work, and yet test positive for marijuana weeks later.
If blood and urine tests make it difficult to detect the presence of marijuana, hair tests are even more problematic. That’s because your body stores THC in its hair follicles and the presence of THC can remain in the hair for up to three years after the last time you smoked. This dilemma has prompted employees to fight back by obtaining ingestible products or purifying shampoo that will cause a person to test negative for marijuana.
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