The Drug Test Debate: Clearing the Smoke for the Medical Cannabis Community
As cannabis use in the United States skyrockets, more people will inevitably face the ominous, pre-employment drug test. Many cannabis users will have to face this daunting ordeal at some point in their professional careers, leading to questions surrounding their use. How exactly does a federally illegal substance, legal for medical use at the state level, fit into the lives of hard-working Americans?
While the answer is not a simple one, it is worth investigating.
Know Your Rights So You Can Exercise Them
Illinois does have protections for its medical cannabis patients, and hopefully this article will clear the air and offer practical insight into the role of medical cannabis in the workplace. The best way to exercise and advocate for patient rights is to be knowledgeable and educated.
When the Party is Over, THC is the Last to Leave
Due to the unique lipophilic (“lipo” = fat; “philic” = loving) nature of THC, it gets stored in human fat cells (adipocytes), and is therefore notorious for having the longest elimination time—upwards of a month or longer from last use for chronic users—of all drugs tested in a standard urinalysis (Sharma et al., 2012) (Westin et al., 2014). Virtually all other substances have metabolites that are water-soluble, and take only a matter of days before becoming undetectable in urine.
The Safest Strategy Is To Naturally Detox (If You Can)
For all purposes, if you know you have a drug test coming up and it’s possible for you to take a break, go for it. While you certainly have rights as a cardholding medical cannabis patient in Illinois, the ambiguous legislative rhetoric fails to offer any sense of certainty or peace of mind. As ideal as it would be, the law does not offer blanket protection for every profession.
Big corporations and entities that require federal licensure to function (e.g. commercial airline pilots, healthcare providers, and school bus drivers, to name a few) are incredibly risk-adverse, and would rather “play-it-safe” since cannabis is still federally illegal as a Schedule I substance.
If the stakes are high enough, your best bet is abstinence and time (aka a “tolerance break”) to successfully pass a drug test. However, while this may be the safest bet for the recreational user, medical patients who truly need to daily medicate with cannabis don’t always have this luxury.
Not Everyone Can Simply Take a “Tolerance Break”
For medical cannabis patients genuinely suffering from a debilitating illness, ceasing cannabis use for up to a month or longer simply isn’t an option. A Crohn’s patient finally in remission due to medical cannabis seriously needs to consider the risks of complete cessation for such a long time. Is risking the pain of relapse and a flare-up of one’s condition worth the hassle of explaining your status as a legal patient and passing a drug test?
A host of chronic illnesses are effectively treated with cannabis; is it ethical to expect patients with these conditions to stop medicating for upwards of a month? In such instances, the element of compassion from the Compassionate Use of Medical Cannabis Pilot Program Act, implemented in 2012, is particularly lacking.
A Note to Employers & Employees
First, it is necessary to note that patients are not the only ones in the dark when it comes to cannabis and drug testing policy in IL. Due to the ambiguous wording of the Compassionate Use of Medical Cannabis Pilot Program Act, both parties are advised to maneuver these waters carefully. Employers violating the rights of registered medical cannabis patients, by refusing to hire or firing an employee testing positive for THC, as per the aforementioned legislation, could face a serious discrimination lawsuit. Additionally, asking if a candidate uses medical cannabis can open up an employer to consequences for inquiring about health-related information.
Meanwhile, in Illinois as of 2004, prospective employees trying to circumvent the test by “faking it” (e.g. using “synthetic urine”, tampering with the sample, etc.) could face a class 4 felony conviction with a minimum fine of $1,000 (Public Act 093-0691). Ideally, a state-registered patient shouldn’t have to worry about faking drug tests. Dissecting the legislation and parsing through its rhetorical nuances will help reveal the extent to which it protects patients, and in what situations it doesn’t. Understanding these laws is imperative for patients and employers alike, due to potential legal consequences that no one wants to incur.
IL Offers “Explicit” Employment Protection for Medical Cannabis Use
Illinois is actually one of only nine states providing “explicit” employment protection for medical cannabis use. Sounds pretty cut and dry right? Unfortunately, it isn’t. Upon taking a closer look at the law, things start to get more complicated. As per the Compassionate Use of Medical Cannabis Pilot Program Act:
“Illinois prohibits employers from penalizing a person solely because of his status as a registered qualifying patient unless failing to do so would cause it to lose a monetary or licensing-related benefit under federal law. 410 Ill. Comp. Stat. 130/40(a)(1)”
What Does It Mean?
Employers cannot discriminate by refusing to hire a candidate, or fire an employee, solely for being a state-registered medical cannabis patient with a positive urinalysis for THC, except when failing to do so would jeopardize federal benefits that compromise the company’s bottom line or place their licensures at risk. Prospective job-seeking candidates should be wary of the position they are applying for, and try their best to understand the organization’s policy surrounding cannabis, specifically for medical use, as part of their pre-employment research into an employer. As mentioned earlier, multinational corporations and large entities operating across state lines are risk averse, and often feel they must foremost comply with federal guidelines.
Faking Drug Tests in IL is Now a Class 4 Felony in IL
Many cannabis users have tried to fake or tamper with drug screens with cannabis still in their systems. However, the stakes for trying to fake a pre-employment drug test in IL are higher than ever before. As per Public Act 093-0691, attempting to fake or tamper with your sample during a pre-employment drug screen is a felony in the state of IL. About a decade and a half ago, this wasn’t the case.
As such, it was not uncommon for people to cheat the test in curious ways: taping a clean urine sample (perhaps from a friend) to one’s thigh (normally in a condom), providing synthetic sample, or “fake urine,” and consuming the less reliable “detox” drinks (an upcoming article will explore science behind the physiological metabolism and elimination of THC from the human body)
As the consequences for falsifying or tampering with your specimen have magnified, the technology behind drug testing has, as well. A recent 2017 study describes the “procedures and “safeguards” used to validate the sample: “measuring sample temperature at the time of collection and laboratory measurements of creatinine, specific gravity and pH” (Goggin et al., 2017).
Some Fake Urine Samples Appear to Sneak by Anyway
An interesting observation in this study revealed, “2% of samples were identified as inconsistent with natural urine samples, even though they met the current acceptance criteria for creatinine, pH and specific gravity” (Goggin et al., 2017). That means there were fake urine samples that passed all the tests and managed to slip by all the safeguards anyway. As urine testing technology has evolved, so has the synthetic urine industry. The stakes of trying to fake a test in IL, however, has significant consequences.
Going in Armed with Knowledge
One should be aware of this legislation and the potential consequences one could face if attempting to cheat the game. Unfortunately, not every patient can just stop using medical cannabis for enough time to test negative; these patients are often in too much pain and need to medicate daily. This leads to a tough choice if they decide to follow the rules: either tell their employer beforehand that they are a medical cannabis patient, and expect a positive test for THC, or wait for the employer to approach them.
Either way, when confronting the issue head on, go in informed and ready to stand up for yourself, armed to the teeth with facts and knowledge.
Don’t Give the Employer Ammunition
While an employer can arguably come up with reasons unrelated to cannabis use (whether true or not) when trying to defend the unjust firing or refusal to hire medical cannabis patients, their case is weaker if they don’t have any ammo to begin with. Responsible, reliable, and successful employees let go after a positive THC drug screen, who otherwise haven’t given their employers much reason to discipline them, will find it much easier to prove in court that cannabis was the reason they were fired. Of course, in the case of hiring prospective candidates, there’s more leeway for employers to reject candidates. This is where the waters get murky and air hazy again.
The “Zero-Tolerance” Policy at the Workplace
Several employers institute a “zero-tolerance” policy when it comes to drugs in the workplace. They have the right to impose consequences on employees who use medical cannabis at the workplace, or on those who appear impaired while on the job. This shouldn’t be terribly surprising; if you come to work impaired under the influence of anything, disciplinary consequences can be expected. As far as the actual “using” of medical cannabis, patients should be realistic when it comes to the idea of medicating at work. A zero tolerance policy means using cannabis at work is illegal, even if it is medically authorized.
Rx Opioids vs. Medical Cannabis at the Workplace: The Double Standard
The recently passed opioid alternative and medical cannabis expansion bill (SB336) is certainly a victory for the medical cannabis community here in IL, eliminating burdensome sociopolitical and economic barriers to patient access. However, it is ripe with almost unavoidable inconsistencies and double standards when realistically medicating with cannabis compared to prescription drugs at the workplace. The lack of stigmatization from taking pills allows for something like opioid use and abuse to fly under the radar at the workplace.
Barring the use of edibles/oral formulations, there are relatively few inconspicuous ways to dose cannabis, with combusting flower being the most “inappropriate” for the workplace (for obvious reasons). However, someone could be popping painkillers at their cubicle all day without consequence if they were not visibly intoxicated. Indeed, studies show opioid abuse is also rising in the workplace, and has been reported to decrease productivity, increase employee health risk, and result in higher absenteeism (Lucas et al., 2017). Considering that the idea behind SB336 is to push people toward medical cannabis over opioids for the treatment of pain, it is bewildering that no specific protections for employees were outlined in the bill.
A Note About Healthcare Workers
Opioid abuse is even prevalent among healthcare workers. A 2015 study claimed that while reported cases put the number of nurses with a substance abuse problem at 1%, when factoring in all the potential unreported cases, that number is closer to 10% (Starr, 2015). Ideally, these people would be ideal candidates for the opioid alternative bill, where they could use cannabis instead of filling their opioid prescriptions—but how will they fare when it comes to getting drug tested at work or for a job in healthcare? Remember that part about how cannabis can compromise federal licensure? This is likely another challenge we will have to face as a society as we try to accommodate and provide access to those in the healthcare industry, among others. This is yet another stark example of how the legal dissonance between state and federal cannabis laws ultimately burdens the patient, and therefore society at large.
Marinol Mandate in Noffsinger v. SSC Niantic Operating Co., LLC.
Ironically, there is a (rather ineffective) FDA approved pharmaceutical drug in America that contains synthetic THC called Marinol. In the case Noffsinger v. SSC Niantic Operating Co., LLC, the plantiff won, as the court mandated that Marinol is legal and the plantiff had a prescription (Noffsinger v. SSC Niantic Operating Co., LLC, 2017. To learn more about synthetic cannabinoids—the good, the bad and the ugly—check out this article here.)
There is no Guaranteed Protection
The Compassionate Use Act does not offer universal blanket protection for all current and prospective employees across industries. There are exceptions to this statute, as we’ve seen above. How do you know if the job you are applying for, or currently have, will discriminate against your cannabis use? There are some usual suspects: commercial aircraft pilots, construction workers (pretty much anyone who operates heavy machinery), and school bus drivers are commonly attributed exceptions to this rule. However, things get fuzzier when considering multinational corporations who act across several states, and are therefore subject to federal guidelines and regulations. It is always important to do your research into the job you’re applying for and decide the best course of action after careful deliberation.
Another Scientific & Clinical Issue Turned Political
The politics of cannabis legislation are notoriously controversial and largely detrimental to the reality of the situation: people’s lives and well-being. The medical cannabis movement isn’t slowing down, but policy isn’t catching up fast enough. Nonetheless, the more informed you are, the more you can stand up for you rights and make the decision you think is best. Indeed, the ambiguity of this legislation seems to leave the patient with some serious questions.
Job Seeking Advice 101: Do Your Homework
It would be a wise move to anonymously find out your company’s policy concerning medical cannabis when strategizing and planning your next steps. For many, a detox period beforehand is the preferred method of ensuring a clean sample without the need to risk a class 4 felony. However, one must sympathize with those patients who would experience a great deal of pain and discomfort with a detox. The discord between policy and patient is clear.
You Still Have Rights
This article discussed some practical challenges that will inevitably arise from evolving cannabis legislation and its integration into mainstream society. However, it’s important to note that you, as a patient, do have rights. Most jobs must obey the Compassionate Use Act and are not allowed to fire or refuse an individual based on their status as a medical cannabis patient. Of course, there is nothing stopping an employer from coming up with reasons that are unrelated to medical cannabis to justify their decision without disclosing that cannabis was indeed a factor.
However, there is now legislation to protect patients, and it’s important to understand the law as much as possible. Hopefully, over time, reality will conform to legislation and policy to accommodate the growing number of medical cannabis patients in IL and across the country.
The “Drug-Free Workplace Act” Doesn’t Actually Require Drug-Testing
In 1986, Reagan signed an Executive Order called the “Drug-Free Workplace Act”, which was eventually signed into law two years later on November 19, 1988. The law requires some individuals and organizations who have Federal contracts and all entities that obtain Federal grants to abide by requirements for a “Drug-Free Workplace”.
Ironically, none of the stipulations require an employer to drug test their employees! While entities like the DoD, DoT and the Nuclear Regulatory Commission “require drug testing for certain employees of employers in the industries they regulate (e.g. air traffic controllers)”, The Act and these rules “neither require nor authorize drug testing” (Dept. of Labor, 1988).
While the Department of Labor ended the “Drug-Free Workplace” program in 2010, many employers still rely on it to this day to shape their policy surrounding drugs and the workplace, even drug testing (even though the law clearly does not require it). Besides federal contract or grant money, employers may be incentivized to drug test and maintain drug-free work environments (even if not required to) for the sake of workman’s compensation cases, property liability insurance and sometimes even lower premiums on healthcare. However, as cannabis use continues to increase and new policies and laws at the state level are increasingly emerging and expanding, this friction created by inconsistencies in federal and state law are reaching a tipping point.
Put simply, there needs to be further legislation clarifying these issues and stronger protections integrated into our laws so there is less ambiguity. In fact, a new bill introduced in Congress could be a huge stride in the right direction if passed.
A Glimmer of Hope for Federal Employees: The Fairness in Federal Drug Testing Bill
Introduced by Congressmen Charlie Crist (D-FL) and Drew Ferguson (R-GA), the Fairness in Federal Drug Testing bill would permit military veterans and federal employees to use state-legal medical cannabis without fear of losing their jobs or being refused employment. If passed, this landmark bill would be a leap towards progress, not just for medical cannabis patients, but the entire United States of America. If the Federal government took a stance on this issue by issuing this sort of ruling, it would help pave the way for significant protections for medical cannabis patients on the state level. Unlike prior proposals, the Fairness in Federal Drug Testing bill would likely extend to private employers who contract with the federal government as well, thus allowing them to protect employees who test positive for cannabis at the workplace or during a pre-employment drug screen.
A Cruel Irony in Need of Reconciliation
Whether you are a medical cannabis patient yourself or not, this issue should concern everyone. Criminal Defense Attorney and Admin for The Medical Cannabis Community Facebook Group, Kelvin McCabe, called this issue of the “cruelest ironies here”. He goes on to explain why: “people can use medical cannabis to get their health back, get off disability, be able to work…and not get a job because they can’t pass a pre-employment drug screen. That issue is going to increase substantially given how many people who use opioids (and will qualify for the [opioid] alternative program) use them because of injuries or stress from work (e.g. back injuries) are so common in the trades and physical labor type jobs”.
Closing Thoughts on a Complex Yet Pivotal Issue
For now, raising further awareness, continuing the discussion and casting your ballots at the voting booth are some of the best ways to help push for this logical reform. As Kelvin so eloquently pointed out, what is the point of helping someone get their health and their life back if they’re unable to return to the workforce?
With the opioid epidemic ravaging the nation, patients need more incentives to use an alternative like cannabis, which has been proven by several longitudinal studies to reduce opioid use, abuse, prescriptions and overdoses (including fatal OD’s) in states that have implemented some sort of medical cannabis program. Thus, by better streamlining the integration of cannabis into our society we can not only continue to reduce the sociomedical burdens of the opioid epidemic, but eventually reduce socioeconomic burdens such as unemployment on society as well.
Goggin, M. M., Tann, C.-M., Miller, A., Nguyen, A., & Janis, G. C. (2017). Catching Fakes: New Markers of Urine Sample Validity and Invalidity. Journal of Analytical Toxicology, 41(2), 121–126. https://doi.org/10.1093/jat/bkw119
Illinois General Assembly – Full Text of Public Act 093-0691. (n.d.). Retrieved September 4, 2018, from https://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=093-0691
Illinois General Assembly – Full Text of Public Health Act 410 ILCS 130/. (n.d.). Retrieved September 4, 2018, from https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3503&ChapterID=35
Lucas, G., Neeper, M., Linde, B., & Bennett, J. (2017). Preventing Prescription Drug Misuse in Work Settings: Efficacy of a Brief Intervention in Health Consciousness. Journal of Medical Internet Research, 19(7). https://doi.org/10.2196/jmir.7828
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