Any Trace of Cannabis Can Cost Your Job — and More — Even Where It’s Legal

Even in states where adult cannabis use is legal, consumers are facing termination for off-duty use.

Jess (not her real name) recently spent seven weeks going through an arduous interview process for a new job — creating a sales department for a large family-owned business in the heavy trucking industry — after months of pandemic-related unemployment. It initially seemed like it was worth it to the New York-based, divorced single mother of two because, at the end of the interview process, the company made her an offer.

But when it was time to sign the offer letter, Jess noted there was a contingency: she had to pass a background check and a drug screening.

The first, she thought, would be no problem; as for the second, Jess disclosed she had been a medical marijuana cardholder since December 2020. (New York legalized medical marijuana in 2014, but implemented it under a very restrictive framework in 2017, which limited it to certain patients and also did not allow them to smoke it. The state decriminalized marijuana and made it legal for adult use in March 2021, but has yet to pass any regulations implementing its legalization.) She even volunteered to supply all her paperwork for reference.

“I wish now that I had insisted or that I had asked to speak to HR. I wish I had not signed the offer letter when it was worded, ‘This job offer is contingent on passing a drug test and background check.’” — Jess

The hiring manager told Jess disclosure of her medical card paperwork was unnecessary, but suggested she refrain from using the substance she was prescribed to treat her medical condition for several days before completing the pre-employment urine screening.

Currently, testing a person for the presence of THC as part of an employment background check or an at-work spot-check is like going through old beer bottles in someone’s trash to prove that they are intoxicated: the tests all look for metabolites because there is no reliable method for measuring what THC intoxication is, let alone a test for it. And, while breathalyzers are in development to measure cannabis intoxication, there simply aren’t accurate testing methods for cannabis intoxication.

Depending on how often a person consumes the plant, THC metabolites — the chemicals created when THC is broken down by your body — can stay in urine for up to 30 days for chronic users, and can remain for more than 90 days in your hair follicles. Furthermore, both full or broad-spectrum CBD has trace amounts of THC, which can also cause a positive urine test.

So refraining from use for a few days won’t change the outcome of a urine drug panel — no matter how many detox drinks or Reddit remedies a person tries. (In fact, most urine drug tests are now able to detect attempts at getting a clean result using synthetic urine or adulteration methods.)

Ultimately, Jess failed the screening and the company rescinded the offer. Worse yet, because of the lengthy process involved for the job she really wanted, Jess had turned down a competing job offer. That refusal caused her to not only lose her unemployment benefits but to face action by the agency to force her to repay four months of benefits, based on when she turned down the first offer while waiting on the one that was ultimately rescinded. (She plans to appeal.)

“I wish now that I had insisted or that I had asked to speak to HR. I wish I had not signed the offer letter when it was worded, ‘This job offer is contingent on passing a drug test and background check,’” Jess said.

***

Jess is not alone in her plight. Because the federal government still classifies cannabis as a Schedule I controlled substance, some employers regularly deny benefits, withdraw job offers and terminate people who use cannabis off-duty, regardless of its legal status in a given state.

Shonda Broom, Holistic Wellness Practitioner and founder of Coram Deo Holistic Center, lost her nursing license in 2016 because a urine analysis test came up positive for cannabis metabolites, which she was using for health issues without a prescription. Immediately after, she refrained from use and found another job, where she passed the pre-employment screening.

But now, every time she submits to a background check for a job, Broom explained, her surrender of her license shows up under a category that implies she committed fraud or abuse — and that has prevented her from finding work in her field.

Unfortunately, the failed urine test triggered an investigation that ended in an ultimatum from the state board: either accept a suspension or surrender her license. Broom surrendered her license because she felt accepting a suspension was admitting to wrongdoing on her part, and, in her opinion, her dedication to a healing plant wasn’t wrong.

But now, every time she submits to a background check for a job, Broom explained, her surrender of her license shows up under a category that implies she committed fraud or abuse — and that has prevented her from finding work in her field.

If Broom wanted to apply for a nursing license in another state, she would first have to reinstate her license with Louisiana by agreeing to the suspension she initially refused. For that to happen, Broom — who, again, was sanctioned for having cannabis metabolites in her system in a state that’s had some version of medical marijuana on the books since 1978 — would have to complete a rehabilitation program for substance abuse that costs $4,000 before the suspension would even be approved by the Recovery Nurse Program. Once the suspension was approved, Broom would have to spend two years attending a Narcotics Anonymous meeting twice a week, being shadowed by another nurse, and being restricted from administering medications.

So while Broom consults and performs nonprofit work as a holistic cannabis nurse in Louisiana, she cannot secure employment in hospitals, nursing homes, or home health agencies, and she is not allowed to work as a Certified Nursing Assistant instructor.

Her licensure surrender has even made her unhireable in other industries.

“For example, I’ve applied to do call center work but was denied the position due to my license situation showing up on background checks,” Broom said.

Broom consulted with a lawyer to find out if she could take an alternate route to keep her license but found there was no recourse.

“I went to an attorney here in Louisiana who specializes in dealing with the Louisiana State Board of Nursing,” Broom said. “After telling my story to her, she told me no matter what I say, they won’t see my situation and respect my choice.”

***

Jessica McElfresh, a California-based cannabis regulatory lawyer, said most people in Jess or Broom’s position currently have no legal recourse because there are no blanket employment protections for cannabis use, medical or otherwise. Each state is different, she noted, but because cannabis is a Schedule 1 controlled substance, restricting employment to people who don’t use it for any reason falls under the umbrella of drug-free workplace policy.

For example, in Maryland (and other states), an employer can take action against an employee for a positive cannabis metabolite test, even if they have a medical card. And, even though adult use of cannabis is perfectly legal in Washington, D.C., several would-be White House staffers found out the hard way earlier this year that partaking can still disqualify one from serving at the pleasure of a president they helped elect.

Meanwhile, Vermont law bans drug testing of applicants for employment until after the applicant has been offered a job and the employer has given notice of the intent to test. The law does, however, allow drug testing of some employees.

Some states are changing — or at least trying to. Michigan’s attorney general is trying to change the state’s policy that disqualifies residents who use cannabis from qualifying for unemployment benefits. New York put protections against discrimination for legal off-duty use when it passed a law to decriminalize and eventually legalize adult-use cannabis. And there is proposed legislation in Illinois that would change workplace testing policies.

Meanwhile, Vermont law bans drug testing of applicants for employment until after the applicant has been offered a job and the employer has given notice of the intent to test. The law does, however, allow drug testing of some employees.

The Office of the Attorney General released guidance in 2018 addressing drug testing in the context the state’s legalization of personal cannabis use:

Although most employers do not have policies addressing what employees do outside the workplace — especially what they do in the privacy of their own homes — the new law makes clear that if an employer did have a zero-tolerance policy for marijuana use both on and off the clock, an employee fired for violating that policy could not use Act 86 as a basis for suing the employer.

The attorney general’s office has not announced any new guidance related to adult-use cannabis laws.

Still, McElfresh reiterated that while the criminal laws on the state level are changing significantly, the most basic employment protections for users remain seriously lacking in nearly every state. And even in states that have laws to shield employees from retaliation or are considering legislation to do so, most healthcare and safety positions — like drivers or operators of large vehicles or trains — are excluded from a state’s protections.

McElfresh points out that until cannabis is rescheduled at the federal level, the onus to understand their rights (or the lack thereof) is on the consumer.

“Consumers need to know what they are risking or the possible consequences of choosing to consume cannabis,” McElfresh said.

Thanks for reading! 🙏🏽

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