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Failed a Drug Test? Ask Your Employer THIS!

One Gallup poll found that almost half of American adults have tried marijuana at least once. Data from Pew Research discovered that 18% of Americans had consumed the substance in the previous year, with 11% using it in the month before the survey.

The number of American employers that perform drug screenings for marijuana is falling, and there are even protections for employees in certain states. However, in some states where cannabis use is recreationally legal, companies still fire employees who test positive for the substance.

This is a major problem for individuals who consume the substance during their days off because THC-COOH metabolites can remain in the urine for weeks. With severe consequences for failing a drug test, it is only natural that you would want to fight the verdict.

This article outlines what you should do if you test positive for marijuana, including advice on disputing the outcome.

What Constitutes a Failed Drug Screening?

The cutoff limit is 50ng/mL in a standard company urinalysis, 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.

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This second test 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!

Even one-time users can expect to test positive for a couple of days after consuming weed. Drug tests look for THC, the active intoxicating compound in marijuana. 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.

What Will Happen if I Fail a Drug Test at Work?

It is an unfortunate situation for people who use marijuana legally and responsibly. It seems unfair that someone can get in trouble using cannabis on Friday evening when they’re not working again until Monday.

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

In the event of a positive test, don’t automatically accept the result because there’s a possibility of a false positive.

How to Explain a Failed Drug Test

The most likely reason people produce positive drug test results is that they smoked marijuana relatively recently! Nonetheless, it is entirely possible for a drug screening to display a false positive, and there are several potential reasons.

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.

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However, the research team used the caveat that such tests were only this reliable when using an ‘unadulterated urine specimen.” 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 don’t accept your fate if you have genuinely not used marijuana recently.

A study by Smith et al., presented at the American Psychiatric Association’s (APA) 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. The sheer number of ways in which it is possible to fail a drug screening accidentally is astounding.

CBD Oil

Unfortunately, not all CBD oil is created equal, and it is an unregulated industry, which means there are still too many low-grade products on the market. It is often the case where a CBD tincture contains significant amounts of THC in this scenario.

A 2020 study published in Missouri Medicine looked at mislabeling, contamination, and fraud in CBD products. It outlined an FDA study on over 100 products, which found that 49% of the products contained THC. The tests revealed a THC level of over 6mg per ml in some products, easily enough to cause a failed drug screening.

Using CBD products derived from hemp with a maximum of 0.3% THC could cause a failed test if you use enough. A CBD container with 30ml of liquid could have up to 90mg of THC. Using 1ml a day with even 0.2% THC is the equivalent of 2mg of the intoxicating cannabinoid. 2ml a day equals 4mg of THC, and over a certain timeframe, the level of THC could build up in your body to the point where a failed drug test is possible.

One way to get around this issue is by purchasing broad-spectrum or CBD isolate products. Here are three such products to consider:

  1. Medterra CBD Isolate Oil (500mg – 6000mg CBD)
  2. CBDistillery CBD Formulation Powder (1 Gram, over 92% CBD)
  3. Joy Organics CBD Gummies (30 x 10mg of CBD)
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Prescription Drugs

A handful of prescription drugs could result in a false-positive result for THC. Believe it or not, NSAIDs such as ibuprofen are sometimes blamed for causing false positives. However, most urine specimens are corrected when a different screening methodology is used. Other drugs that could cause a false positive THC reading include:

  • Pantoprazole
  • Antibiotics
  • Antihistamines
  • CNS stimulants such as Ritalin and Adderall
  • Proton pump inhibitors (PPIs)
  • Decongestants
  • Cough suppressants

Efavirenz, an antiretroviral treatment, is yet another substance that could result in a false positive. In a study 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 causes a false positive for THC up to 45% of the time.

Other Reasons for a False Positive

Believe it or not, 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, and 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. The information outlined above only proves 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, so some companies don’t want you to know about it!

Don’t Claim Passive Inhalation as a Defense

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 published in the JAMA Network 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 consisted of 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 just about tested beyond 20mg/mL.

Passive inhalation is not an excuse for testing positive on a drug test – it’s incredibly unlikely to cause a false positive!

When presenting the 2010 study to the APA, 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.

A 2015 study published in the Journal of Analytical Toxicology further examined the issue. Researchers placed six experienced marijuana smokers in a sealed chamber with six non-users. The smokers used cannabis with 5.3% THC in session 1 and 11.3% THC in the subsequent two sessions. Marijuana exposure sessions lasted for an hour.

The non-smokers then submitted to drug tests. While there were multiple positive readings at 20ng/ml, there was only one at 50ng/ml, the standard cutoff point. Ultimately, while it IS possible to test positive for THC metabolites due to secondhand smoke exposure, it is extremely unlikely, and your employer won’t accept it as a valid excuse.

How to Dispute a False Positive Drug Test

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.

Contact your supervisor or a Human Resources Officer to talk about the issue as soon as possible.

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.

At this stage, 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.

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What Happens Next?

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) is collected, they are split into two samples, with one saved for confirmatory testing. The GC-MS test is run on the other sample if the initial test shows a positive result.

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

In most states, this will probably 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 theoretically get into legal trouble if you use marijuana in a state where it is illegal.

However, companies with 15+ employees are subject to the Americans with Disabilities Act (ADA). It includes certain addictions among the conditions for which companies must provide reasonable accommodations. Therefore, employers must be prepared to offer these accommodations to employees subject to ADA, including providing leave time to pursue rehab or counseling.

You Can Still Fight Back

However, you could be lucky 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 said that the law prevents employers from discriminating based on the use of MMJ.

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 could not prove she was impaired at work.

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

At present, around 20 states prohibit employers from discriminating against MMJ cardholders. These laws also prevent companies from firing employees who test positive for marijuana, as long as they use the substance off-duty. In certain states, employers have to reasonably accommodate people who use MMJ for a medical condition.

For example, if someone uses MMJ for glaucoma at night, their company should allow the person to begin work later in the morning.

What Happens if You Fail a Pre-Employment Drug Test?

In most cases, a failed pre-employment drug test disqualifies you for the role unless you live in a state that affords protections to legal users of the substance. Technically speaking, you could get into legal difficulties if you live in a state where marijuana is completely illegal.

However, it is unlikely that the company will contact law enforcement authorities. False-positive tests can happen, and organizations will hardly ever bother running a confirmatory check in the pre-employment stage. If a business reports you to the police, you could sue them if the test results aren’t accurate.

The consequences are more severe if you apply for a safety-sensitive position, such as a role at the United States Department of Transportation (DOT). If you fail or refuse a pre-employment DOT drug screening, it will impact your ability to get further employment. In this scenario, you will need to complete a DOT Return to Duty (RTD) process with a qualified DOT Substance Abuse Professional before future applications.

A positive test result stays in the Drug and Alcohol Clearinghouse until you finalize the RTD process and complete follow-up testing. At that point, the information stays in the clearinghouse for five years. Employers can’t access DOT drug testing results without your permission, but failure to provide consent means you’re prevented from performing safety-sensitive job duties.

Can You Still Get Hired if You Fail a Drug Test?

In most cases, companies that conduct drug tests won’t hire you if you fail. However, some businesses might ask you to get tested again later. Pass that particular screening, and you may remain in consideration for the job.

A lot depends on the company’s policies in general. You can forget about being hired for a government position or any role where safety is paramount. However, in certain situations, a company might hire you on the proviso that you clean up your act. Such organizations will almost certainly test you regularly while you’re in their employ.

Please note that the employer is the only party authorized to see your results, and it is illegal for them to share the information with other employers. Therefore, if you fail a drug screening for one company, you can get a job with a different organization if you pass its drug test. Alternatively, you can apply for a position with no pre-employment drug test.

A final option is to use synthetic urine to try and cheat on your test. Brands such as Upass and Quick Fix are highly rated. However, it is illegal to use fake pee in many states, and you will face legal action if caught using it in these locations.

Final Thoughts on Failing Your Drug Test

A tighter labor market and increased legalization and availability of weed mean 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 or more if you buy from a low-grade brand. If you use 1ml of CBD oil, it could legally contain 3mg of THC. If you use a large amount of the oil each day, there’s a risk of failing a drug screening. It is also possible to provide a false positive due to medication you took or a faulty test.

Ultimately, your job is on the line, so you should appeal the result if you believe the test reading is incorrect.

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