Failed a Drug Test? Ask Your Employer THIS!

Recent data shows that at least one in seven Americans has tried marijuana in the last year. Frankly, this figure is probably even higher now that several more states have legalized medicinal or recreational marijuana recently. We live in a nation where 33 states plus D.C. allow medical cannabis use, and 11 of these states plus D.C. now allow recreational use.

While the number of American employers that perform drug screenings is falling, data from the Society for Human Resource Management (SHRM) states that approximately 57% of employers in the United States still perform drug tests on ALL job candidates. According to Statistic Brain, the cost of implementing these tests is over $3.75 billion each year.

It is bizarre that in some states where weed is legal for recreational use, such as in California, employers are legally allowed to fire employees or refuse a job to an applicant if they test positive for marijuana.

Depending on your usage, THC metabolites can remain in your urine for several weeks.

Even one-time users can expect to test positive for a couple of days after consuming weed. THC is the active psychoactive compound in marijuana that is tested. A urine drug screen (also called a urinalysis or UDS) tests for the metabolite THC-COOH. Although a UDS does not prove an exact amount of the metabolite, it does indicate that the concentration is above a certain threshold.

In a standard company drug test, the cutoff limit is 50ng/mL, and a moderate user should not test positive about four days after their last use. In some instances, if you test positive for THC-COOH on your first test, a gas chromatography-mass spectrometry (GC-MS) test is used. It is a more sensitive and accurate test, and the cutoff point ranges from 5-15 ng/mL.

It is this second test that is almost a secret due to its cost, but if you provide a false-positive result for marijuana in a urinalysis, it could be the test that saves your job!

I Failed a Drug Test, Am I Doomed?

If your employer pays for marijuana screening via urinalysis, it is highly likely that individuals who fail the test will lose their job. Likewise, those who apply for a role and test positive will not be employed by that company. While a variety of states have dispensed with marijuana testing, it is still a sackable offense in a lot of areas.

In the event of a positive test, don’t automatically accept the result. Obviously, if you were high that morning, it is hard to complain! However, there is an increasing number of stories about people who failed drug tests even though they only used low-THC CBD oil. While there are doubtless cases where the unfortunate individual’s purchased oil with too much THC, there is also the possibility of a false positive.

How Does a False Positive Occur?

An old study by Moyer et al., published in Mayo Clinic Proceedings in May 1987, suggested that an EMIT-dau screening test with a limit of 20 ng/mL was nearly 100% accurate. However, the research team used the caveat that such tests were only this reliable if an ‘unadulterated urine specimen” was used. They also outlined that up to 15% of positive results could be ‘false positives.’ Overall, 3% of all tests could reveal a ‘false positive’, so if you have genuinely not used marijuana recently, don’t accept your fate.

A study by Smith et al., presented at the American Psychiatric Association’s annual meeting in 2010, helped solidify Moyer’s findings. According to Smith, 5-10% of all drug tests reveal a false positive, and 10-15% yield a false negative. In fact, the sheer number of ways in which it is possible to fail a drug screening accidentally is astounding.

Unfortunately, the ‘I was in a room with people who were smoking weed and accidentally inhaled it’ defense won’t wash because science doesn’t back it up. A study by Perez-Reyes et al., published in the JAMA Network way back in 1983, looked at passive inhalation as a potential reason for a false-positive result for THC.

Overall, the researchers performed three separate experiments. One involved exposing participants to marijuana smoke daily for three days, while another involved keeping them in a small enclosed room for an hour and exposing them to smoke. The final experiment placed volunteers in a small, closed station wagon and exposed them to smoke.

Of the 80 urine samples taken, only two tested beyond 20mg/mL; and only just about. When presenting the 2010 study, Smith joked that unless you’re stuck in a van with Cheech and Chong for a long time, there is no way to test positive for marijuana use through passive inhalation.

There are also a handful of prescription drugs that could result in a false-positive result for THC. Believe it or not, NSAIDs such as Ibuprofen have been blamed for causing false positives. However, the vast majority of urine specimens are corrected when a different screening methodology is used. Also, pantoprazole and potentially other proton pump inhibitors (PPIs) could cause a false positive reading for THC.

You should also be very wary of using Efavirenz, antiretroviral treatment. In a study by Oosthuizen and Laurens, published in the Annals of Clinical Biochemistry in March 2012, 30 volunteers who used 600mg of Efavirenz daily for 14+ days were tested for THC. An incredible 28 of them gave a false-positive result in a rapid response test!

The researchers believed that one of the drug’s two main urinary metabolites, EFV8-glucuronide, was the reason for the results. However, it is important to note that in the study, the authors did not mention any other medication use such as Marinol which in itself causes a false positive for THC up to 45% of the time.

Believe it or not, a baby shampoo such as those sold by Johnson & Johnson and CVS could lead to a false-positive result for weed! These soaps may have compounds with a structure that resembles THC. Other factors, including hemp seed oil, B2, riboflavin, and medical conditions such as diabetes, liver disease & kidney disease, could also cause a false-positive result for THC in a drug screen.

The initial UDS tests are rapid affairs and are nowhere near as advanced as employers will have you think, and the information outlined above only serves to prove our point. In contrast, the GC-MS test is deemed the ‘gold standard’ of testing because it can detect extremely small amounts. Its high accuracy and sensitivity mean you are far more likely to get a true reading. However, it takes time, money, and expertise to perform the test, which is why companies don’t want you to know about it!

I Failed! What Should I Do Next?

As you can see above, there are several reasons why your test could produce a false-positive result. Your first order of business is to request a GC-MS test which should always be conducted in the event of a positive result. Although you will get a far more accurate reading, there is still the potential for another false positive if the test column isn’t designed to identify all potential compounds.


After you have recovered from the shock of being told about the test, contact your supervisor or preferably, a Human Resources Officer to talk about the issue.

Now is a good time to review your contract, specifically the firm’s anti-drugs policy. It should provide you with information on what to do next if an employee wishes to contest what they claim is a false positive.

If you have been using prescription medication, dietary supplements, OTC drugs, or even CBD products, present them during your meeting with the medical review officer (MRO). Also, disclose all of the food and beverages you have consumed lately, especially so-called ‘herbal’ supplements. Your employer will contact the lab that conducted the test to confirm the results.

It is at this stage that your company should request a GC-MS test. The second test may not be necessary if the MRO concludes that you had a legitimate reason for a positive test, and have the requisite evidence and supporting documents. If this happens, the test is downgraded to a negative. If you also fail the GC-MS test, things get significantly trickier.

Companies prefer to use a test like a urinalysis because it enables them to take screenings on a large scale at a low cost. When your urine (or other specimens) are collected, they are split into two samples with one saved for confirmatory testing. If the initial test shows a positive result, the GC-MS test is run on the other sample.

As it is considered to be the most accurate test around, trying to prove that it gave a misleading result is almost impossible. Unless you can show clear evidence that something you consumed was responsible for the positive test, your contract will almost certainly be terminated.

In most states, this is probably going to be the end of the matter. The consequences of a failed drug test are wide-ranging and potentially life-altering. Aside from the loss of employment, you could get into legal trouble if you are believed to be using cannabis in a state where it is illegal.

However, you could be in luck if you live in one of the few states taking a stand against this increasingly unfair practice. In December 2018 in Delaware, a judge ruled that an MMJ cardholder fired from his factory job after failing a drug test was allowed to pursue a lawsuit against his former employer.

According to Superior Court Judge Noel Primos, federal law does NOT preempt Delaware’s medical marijuana law. He continued by saying that the law doesn’t require employers to commit an illegal act. Instead, it prevents them from discriminating based on the use of medical marijuana.

In February 2019, a federal judge rebuked a Walmart store in Arizona for firing an employee in possession of an MMJ card after she failed a drug test. According to Arizona United States District Judge, James A. Teilborg, Walmart wasn’t justified in firing the employee because it was unable to prove that she was impaired at work.

The fact of the matter is that companies across the United States are finding it harder to fire people for using weed.

In July 2019, New Jersey became the latest state to improve workplace protections for MMJ cardholders; the 14th state to do so. In the last couple of years, medical marijuana users have won cases in Arizona, Delaware, Rhode Island, and Connecticut.

Cristina Barbuto was offered a job with a Sales and Marketing firm in Massachusetts. When asked to take a drug test, Barbuto informed the company that she had an MMJ card as she used cannabis to treat her Crohn’s disease. The company fired her without bothering to find out how the herb helped her. She sued, and in 2017, the state’s Supreme Court ruled in her favor; the company settled out of court.

Final Thoughts on Failing Your Drug Test

A combination of a tighter labor market and increased legalization and availability of weed means that fewer companies perform drug screenings. If you live in a state where MMJ cardholders have protection, you could legitimately sue any firm that fires you or doesn’t hire you, based on a positive result for THC in a drug screening.

If you don’t have this protection and test positive for marijuana, you don’t have to accept the result if you believe it is a false positive. Hopefully, you now understand that the pertinent question to ask in the face of a positive test is: “Can I take a GC-MS test?’ If your employer refuses, you could have grounds for legal action. For CBD users, please remember that your oil could contain up to 0.3% THC. If you use 100mg a day, for example, you are consuming 0.3mg of THC.

Consuming 2,000mg of CBD with 0.3% THC each day could be enough to bring you to the 50ng/mL threshold. Depending on how much THC you ingest as part of your CBD oil, the intoxicating compound could accumulate in your body in just four days and result in a positive test.

Unfortunately, there are still CBD firms that sell oil with a far greater amount of THC than advertised. There are now cases where CBD oil users are suing the seller for causing them to fail a drug screening! If you use CBD and test positive for THC metabolites, your next move should be to ask for a GC-MS test, although that’s likely to provide a second positive. Your company’s rulebook and state laws, unfortunately, dictate what to do if a GC-MS test also reveals THC metabolites. Good luck!

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