Some FAQs we have had recently:

Do saliva tests test THC? Yes

Are saliva tests more accurate for measuring acute intoxication or use at work? While saliva tests have a shorter detection time than urine or hair, the window is NOT short enough to be synonymous with intoxication or use on the job. Also no to Hound Labs.

Do THC levels in the urine tell us if someone is high? No, THC levels in the urine are representative of a much larger window of time and may actually be negative in someone that is high but has not been using before the day of test. BLOOD THC concentrations below 5 nanograms per milliliter did not appear to increase the risk of car accidents. Levels above 5 nanograms per milliliter, however, were associated with an increased risk. In Canada, where recreational marijuana was legalized in October 2018, the cutoff for BLOOD THC is 2 nanograms per milliliter.

Is under the influence of THC the same in all states? No.

10 states have zero tolerance for THC or a metabolite.

4 states have zero tolerance for THC but no restriction on metabolites.

4 states have specific per se limits for THC

Should employers either not test for or disregard pre-employment THC positive employees then terminate them after a post-accident + THC test? In my opinion, NO. OSHA has published concern that post-accident drug testing can be a form of coercion to discourage injury that occurs at work. This approach may be looked at as such a policy. Further, unless reasonable suspicion is documented in addition to the positive test, the level of evidence that THC caused or contributed to the injury is not sufficient in my opinion. I have not yet seen litigation but suspect we will see class action litigation on this in the future over wrongful termination.

What is the best way to handle THC reasonable suspicion? In my opinion, given all factors and lack of ANY readily available legally defensible test for impairment, third party clinical (MD or RN) documentation PLUS presence of confirmed THC in urine or saliva is the best approach.

This blog is not intended to substitute for legal advise. Seek counsel before making legal determinations.