What Happens if You Refuse to Take a Drug Test for Work?

Earlier this summer Oklahoma became the 30th state to legalize medical marijuana. That decision followed nine other states, plus Washington D.C., legalizing recreational use of marijuana for any reason. Considering the increasing liberalization of laws regarding use of the drug, and a marked trend in the number of Americans who say it should be legal64-percent according to a Gallop pollits easy to get the impression that its open season on smoking up, or at least soon will be, everywhere. Theres just one snag there: Despite widespread opinion to the contrary, and regardless of whether or not you are now free to walk down the street in your specific state in a cloud of smoke, you can still get fired, or passed over in the hiring process, if its found in your system after a drug test.

Numbers vary on exactly how common it is, but the best estimates from over the past few years range between 40-percent and 57-percent of U.S. workers being drug tested. Whats worse, thats despite a lack of serious evidence that such tests actually lead to a safer work place in the first place. The practice, like a lot of reefer madness policy, can be traced back to Reagan-era drug panic, after a handful of high profile transportation accidents led to the government mandating testing for federal employees or any company that received significant government contracts. In short, someone fucked up decades ago, and now were all suspects. You might say "Only in America" as a joke here, but it pretty much is only in America that this sort of widespread testing happens.

Confounding all of the progress in the liberalization of marijuana laws is that the drug is still, somehow, illegal under federal law, where its currently classified as a schedule one substance. Thats a purposefully reactionary opinion that essentially ignores all of the medical benefits we are coming to learn about, not to mention the intuitive differences between weed and other schedule one drugs like heroin and meth that reasonable people everywhere have long understood. Until that disconnect is squared, like it or not, the reality is you still may want to keep an eye on your use if youre applying for a job, or even if youre already holding one down. We asked three experts on marijuana policy and/or labor law to explain a little more about where things stand when it comes to testing.

How common is drug testing exactly?
Its almost an automatic in a lot of blue collar work, but its extended into the service industry for a variety of different reasons, said Stefan Borst-Censullo, a criminal defense attorney who also works on licensing policy for the cannabis industry in California. Generally speaking, below a certain income level it should just be expected if you're applying for a job, even more so in a temp agency.

Its pervasive in the U.S., said Dale Gieringer of California NORML. And there is talk about it in Canada now, where manufacturers up there are talking about extending it. Canada has sort of had rules that preclude that kind of stuff for a while, but now that theyre legalizing theres pressure from businesses to do something. On the other hand, Gieringer points out, there have been quite a few press reports since Colorado and California legalized about companies that are abandoning at least testing for marijuana voluntarily.

So its completely legal to compel an employee to do a drug test?
Its not illegal to test because its still a federal crime to use marijuana. You're committing a federal crime if you're using it, Gieringer said.

Drug testing is not illegal at all, added Amy Gluck, a lawyer in New York who writes on employment and drug policy and advises corporate clients on human resources issues related to testing among other things. The only way an employer could run afoul of the law when it comes to testing is if the tests are not applied evenly, meaning an employer cannot target certain protected classes of people, race, religion and so on, when deciding who to test.

The Supreme Court, in 1989, acknowledged that while it may be an invasion of citizens privacy, testing can be necessary in ensuring the health and safety of others.

What if its for medical use?
It will depend, according to all three experts, but courts have ruled in favor of employers when it comes to firing workers for marijuana use, even if its for a medically valid reason in states where marijuana is legal. In 2015 the Colorado Supreme Court upheld a lower courts ruling in a case in which a Dish Network employee, Brandon Coats, a quadriplegic who used medical marijuana when off duty to control seizures, was fired for a positive drug test. On the other hand, the Massachusetts Supreme Court came to the opposite conclusion in a similar case last year.

Is it the states we think are more liberal that have better protections?
New York is certainly very liberal, and has some of the most employee friendly policies in the country, Gluck said. However, a bill introduced in California to ensure the rights of medical marijuana users stalled in committee this year and wont be looked at again until next year. Twelve states have certain protections for medical cannabis patients in the workplace, eleven through statutes, and one, Massachusetts, judicially established.

If you're using it outside of work and it doesn't effect your performance they may have to accommodate you, said Gluck, although noting that the Americans with Disabilities Act does not say employers need to provide a reasonable accommodation.

Does an employer need reasonable suspicion to test you?
Again, it depends, said Gluck, on a state by state basis and on the type of job. Some states require reasonable suspicion, but with a safety sensitive position thats a huge issue. They dont need reasonable suspicion to test, and they dont need to accommodate medical marijuana use.

When somebody says an employer discriminated against them, say, based on a medical disability, its their burden of proof, Gluck said. Thats how it always ends up. The employer has to come back and say, No theres a legitimate non-discriminatory reason why I did what I did. And that can be we have federal contracts, or this is a safety sensitive position. This guy runs the airport, for example, thats a safety sensitive position.

Can you refuse the test?
Yes, according to Gluck, but you probably wont get the job youre applying for or may be fired from the one you have. While some states have limits on when tests can be administeredlike California, where it can only happen after a job offer has been sent out on the condition of passing the test. In other states employers have to provide written notice to applicants or list it in a job posting that a test will be required.

Is it worse for people in blue collar fields?
Yeah, and theres a legitimate issue, for jobs where people are more likely to be hurt on the job, said Borst-Censullo. But at the same time I think you have to read in a class thing as well. Most people who are applying for a desk job would be offended outright if they're being asked to pee in a cup. People who are working in more physically demanding and less compensated jobs are kind of used to the abuse, frankly.

What often happens, particularly in jobs where there is a lot of physical activity required, or, to be less charitable to employers, as Borst-Censullo put it, where you might be entitled to workers compensation if you do get hurt, employers will screen you before hiring, then refer to drug test results after an on the job accident to see if they can use that evidence against you in any liability claims.

Where is labor in all of this?
While attitudes about drug use in general are liberalizing labor rights are not, said Borst-Censullo, referencing the Colorado case, which had a chilling effect on policy advocates.

Mostly, labor caved in to a large extent during the 80s and 90s, and a lot of unions were willing to trade drug testing for higher wages or something like that, said Gieringer. But at the moment, on a bill we are working on here in California we had labor support from United Food and Commercial Workers and a couple other unions, but whats stalled us is opposition from some construction trade organization which feel they need to have testing.

What about cannabis activists?
In efforts to decriminalize around the country, advocates will avoid going anywhere near questioning the legitimate needs of an employer to ensure a safe work environment, justified or not, because its political poison said Borst-Censullo. At the moment, at least in California, and on the Atlantic where legal ...