Unless you are employed by a governmental agency, there is no constitutional protection from testing or for refusing to take a drug test. The testing of government employees has been struck down by courts in many types of work, except where the employee’s impairment could cause serious threat of harm, e.g., train conductor. Private employers, however, may impose drug testing as a condition of employment and, if “dirty,” the employee can be fired.

An employee with an alleged positive test result should request a second independent laboratory test of the “dirty” sample. It has been reported that false positives can result for a number of reasons. Also, false positives can force an employee into unnecessary rehabilitation programs or, even worse, result in an unwarranted dismissal. Firing a good employee is a loss to both parties.

Estimates of the length of time THC is detectable in the body by urine testing:

    • Single use: 5 days
    • Daily use: 12-17 days
    • Heavy use: 15-35 days

Notes from Bruce:

Cleansing the Body of THC:

I am not aware of any chemical product that has proven effective in “cleansing” the system of THC. Abstaining, exercising, and drinking lots of water are the only proven ways to rid the body of THC. You may purchase an over-the-counter kit that detects THC from most drugstores to do a confidential test.

Choosing A Breath, Blood, or Urine Test:

If given an option (including for DUI), first choose a breath test, as it does not register THC. If it is requested that you take an additional or different test and you haven’t used marijuana recently, choose the blood test, as THC is detectable for only 3-12 hours in the blood. Choose a urine test if you have recently used or are a daily user. Even though you can expect a positive marijuana metabolite result because it remains in the system for up to 35 days, its presence in your urine is not at all conclusive that you were actually impaired at the time.

Employers Need Guidance:

Employers should be informed and understand that the rational purpose for conducting drug testing is to determine if an employee is impaired on the job. Since the marijuana metabolite is detectable in urine for up to 35 days after use, its mere existence does not establish impairment. The scientific community generally agrees that the effects of marijuana last no more than about 3 hours after use.

A more effective approach is to observe the employee on-the-job behavior, along with motor skill testing like that used in DUI cases. This type of policy reduces the cost of testing, protects the privacy of the employees as well as their morale, and better helps to uncover employees’ inability to perform their duties safely for any number of reasons.

The Law Offices of Bruce M. Margolin, Esq.

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The Law Offices of Bruce M. Margolin, Attorney, is located in Los Angeles, California, and serves clients throughout LA County, including Santa Monica, Burbank, Long Beach and San Fernando.

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