cannabis testing in the workplace scaled

Cannabis Testing in the Workplace — Knowing Your Rights

By Tom McKinney
NJ Employment Attorney

Medical and recreational marijuana use is now legal in the state of New Jersey. However, marijuana use still isn’t legal on a federal level. This inconsistency causes many employees to question whether they can get fired if they test positive for marijuana in a drug test at work. 

Here’s what you need to know about drug testing rights and the legal status of marijuana in New Jersey. 

How Workplace Drug Tests Work

There are several different methods that an employer might use in order to conduct a drug test. Some of the most common include: 

Urine Testing 

Employers frequently use urine testing to screen for drugs. Urine drug tests generally screen for: 

  • Marijuana
  • Amphetamines
  • Methamphetamines
  • Opiates
  • Cocaine
  • PCP

Urine testing is also the only drug testing method approved for federally mandated testing, as opposed to state-mandated testing. 

Oral Fluid Testing 

You may know the oral fluid test as the mouth swab drug test or the saliva test. Employers sometimes favor the oral fluid test due to its relatively inexpensive cost. Oral fluid tests can detect drug use anywhere from a few minutes to 48 hours before the test. 

Evidential Breath Alcohol Testing

Employers may use a breathalyzer to conduct evidential breath alcohol testing. While many drug tests check for past use of the drug up to a certain point preceding the test, alcohol tests can only show an employee’s present level of intoxication. 

This means that if you aren’t currently intoxicated, the breathalyzer will show the same result, regardless of whether you are a regular drinker or someone with ten years of sobriety. 

Hair Testing

When an employer needs an indicator of repeated drug use, they will likely conduct a hair test. Hair tests can check for repeated drug use up to 90 days before the test. Extraordinarily, hair tests can also indicate when a person used a drug, how long they used it, and when they stopped using it. 

Hair tests can detect: 

  • Marijuana
  • Amphetamines
  • Methamphetamines
  • PCP
  • Cocaine
  • Opioids

Because hair is collected under direct supervision and cannot be diluted with bleaches or cleansers, many employers consider hair testing to be the best way to conduct a drug test at work. 

Marijuana and New Jersey Workplace Drug Tests

Recreational cannabis sales began in New Jersey on April 21, 2022. This event left many state residents with a host of questions.

Are random drug tests that screen for marijuana at work still legal?

It is legal for employers to conduct workplace a random drug test at work that checks for marijuana use during work hours. They are also allowed to screen a potential employee for marijuana and to take the test result into account during the hiring process.

Scheduled drug tests that screen for marijuana remain legal as well. In the case of either random or scheduled testing, employees must be made aware of any drug-testing programs in advance.

Can an employee be fired if they fail drug test (marijuana) programs? 

Employers are not able to fire an employee simply for using marijuana. An employer can, however, fire an employee for being impaired on the job. In order to discern whether an employee is impaired on the job, employers can use a cognitive impairment test or an ocular scan. 

A New Jersey Employment Attorney Can Help

Everyone has the right to consistency and basic privacy in the workplace. Our dedicated team of attorneys at NJ Employment Lawyers is committed to protecting that right for all workers throughout New Jersey. We can help you determine appropriate legal recourse if your employer threatens your rights.

If you are a New Jersey employee and you believe that your employer may have violated your rights during or after a workplace drug test, contact NJ Employment Lawyers today.

About the Author
Tom McKinney is a skilled employment law attorney with New Jersey Employment Lawyers LLC. He has a track record of success in all areas of employment law, including sexual harassment, discrimination, harassment, wrongful discharge, whistleblower claims and hostile work environment claims. Besides litigation, Tom handles severance agreements and severance package reviews/negotiations for over 100 people each year. If you have any questions regarding this blog, contact Tom here.