Contact Highs & Employer Drug Tests

Can you fail an employer-mandated drug test from a contact high?


THERE IS SOMETHING in the air. It is likely because last year Washington State decriminalized marijuana by passing Initiative 502. And now both Democrats and Republicans are urging progressive legislation that would permit the federal government to regulate and tax pot in states such as Washington that allow the organic drug.

Since this shift in the formerly unyielding opposition to legalizing pot, you may have noticed a dramatic increase in the number of people openly smoking pot on city streets, in parks, at bus stops, and in other public places. (Take a deep breath at Seattle’s Westlake Park and you’ll get my drift.) But while Washington may no longer criminalize nominal marijuana possession, and while federal law is moving in that direction, employers are nonetheless holding fast to their anti-drug employment policies.

Washington’s Supreme Court has long held that a person’s right to privacy does not restrict an employer from issuing drug-related urine tests. Given that, Washington law permits a private employer to terminate an employee for failing a drug test. And not only that, an employer in Washington can terminate an employee for even refusing to take a drug test. There are naturally some circumstances that might change this general rule: if an employee enjoys a contract that prohibits drug testing or where union employees and employers are parties to a collective bargaining agreement that prohibits drug testing, for example. This situation also raises tricky concerns for medical marijuana users who depend on the drug's medicinal benefits to perform the essential duties of their job.  

But it also raises another interesting question: can a non-pot smoking, non-medical marijuana using employee test positive for drug use simply from a contact high? To answer this question, you must first answer this one: is a contact high even possible?

To the likely chagrin of many teenagers, the most common understanding of a contact high - namely that you can get high from being around other people smoking pot - is actually a myth. The National Institute on Drug Abuse conducted a study of what it called “sidestream” marijuana. The study’s conclusions were persuasive: a group of participants who were locked in an enclosed 8-by-7 room and exposed to four burning joints for one hour mostly tested negative for drug use. And most test participates reported that their “highness” felt the same as smoking a placebo cigarette.

It appears as though the amount of secondary pot exposure needed to produce an actual contact high is rather great. According to a different study, it took an enclosed room filled with 16 joints burning for more than one hour for people to experience a contact high. In that study, the people who participated in the experiment basically reported - not surprisingly - the same effects of actually having directly smoked pot.

And to reliably produce a legitimate contact high, one Norwegian study had to jam test participants into a car with six joints burning for more than a half hour. (There are many lay scientists, I am sure, who conducted this same study with similar results during high school.)

So you can breathe easy: a contact high in well-ventilated places is very unlikely. It is also highly unlikely that you would fail a drug test simply from catching a whiff of pot on the street corner. You might say, in this regard, that Mary Jane really prefers monogamous relationships.


Trent Latta is an attorney and Kirkland resident. He can be reached at TrentLatta@gmail.com.

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JuneGloom February 05, 2013 at 10:23 PM
So, contact highs are not a worry. That's good. What about a person who smokes MJ at night, but not on the job? A person can drink alcohol, and legally work in the daytime, but what will happen to the MJ user who doesn't use during work hours? Washington will have to figure this out. I believe MJ is less dangerous than alcohol. Especially considering how long the different highs last.
Lise Quinn February 05, 2013 at 11:21 PM
This just might be it: http://www.rawstory.com/rs/2011/07/26/fingerprint-analysis-aims-to-revolutionize-drug-testing
RockBerry February 12, 2013 at 02:35 AM
Washington won't have to figure that out at all. What you're speaking to is a private company policy. When a person drinks alcohol the night before and then goes to work the next morning that alcohol is gone from their system. Marijuana will still be present so if the company policy states no drugs then you best not have drugs in your system.
JuneGloom February 13, 2013 at 12:14 AM
RockBerry: I don't think your answer is very scientific. I have had workers show up to my house in the A.M. reeking of alcohol. I've been alive long enough to know a person can wake up drunk the next morning. Washington, or Colorado, will definitely be on the forefront of this issue, as they are the states which legalized MJ and are beginning to think about driving and MJ use.


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