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Drug tested in Delaware? A new medical marijuana law may protect you from getting fired

Recreational weed will be available soon(ish), but you might want to get doctor approval anyway.

Legal marijuana grow pots (Brett Levin / Creative Commons)
With both medical and recreational marijuana legal in Delaware, it’s a misconception that employer drug testing for pot will soon be a thing of the past.

Especially considering that most tests for THC — the part of the cannabis plant that creates a “high” — can’t tell if you used it an hour ago on the clock or a week ago on your own time. The big change soon will be that it’s easier to get a medical card for more reasons, which can exempt users from the consequences of a positive drug test. That law, HB 285, passed the Delaware state legislature in March and will go into effect when the governor signs it into law.

“Our first legislative activity as an industry association was to protect and improve the medical program, because recreational was coming,” James Brobyn, CEO of American Fiber Company and founder and president of the Delaware Cannabis Industry Association, told Technical.ly.

Under the HB 285 amendment to the Delaware Code relating to medical marijuana, residents would no longer need a diagnosis of one of a handful of debilitating conditions to qualify for a card, as was required since medical marijuana was legalized in 2011. Instead, healthcare providers can make their own determination on whether a patient would benefit from therapeutic use of THC.

How medical exemptions protect from workplace discipline

As leaders said in 2021 at the Legalized Marijuana Roundtable held by the Delaware State Chamber of Commerce, legalization doesn’t equal a free pass when it comes to work. Employers are free to test for THC for safety reasons, or, more commonly, because the federal government requires a strict drug policy for companies it contracts with.

A smiling man in front pf a stone wall.

James Brobyn (Courtesy)

It might seem strange to continue to focus on medical THC after Delaware legalized marijuana on paper for recreational use in 2023. But there is a good reason.

Unlike California and Washington, Delaware doesn’t have a law that protects workers who use THC recreationally from losing their job for using it outside of work.

Right now, it’s the medical use laws that will protect cannabis users in Delaware. As the definition of those conditions broaden under HB 285, more cannabis users can get access to a medical card. The recreational use laws, which still won’t protect from employer drug screenings, are still in development with retail licenses expected to be issued by early 2025.

In other words, a strong medical marijuana program protects workers and prevents medical marijuana patients from being disenfranchised, Brobyn said.

Talk to a health care provider to get a medical card

HB 285 also grants extended medical marijuana access in other ways. Residents over the age of 65 to self-certify without needing a doctor’s approval.

Even as the government appears to be moving toward a federal reclassification of THC from a Class I narcotic like heroin to a Class III drug like Tylenol, a medical card will still make a difference. With so many parallel rules and regulations on the state and federal levels, employers will likely still be able to discipline for recreational pot use even if reclassification happens.

If you plan to use weed to help with stress and anxiety — once Delaware’s recreational marijuana licensees open, of course — advocates say to speak to a healthcare professional about getting a medical card when the new law goes into effect.

“On the HR side in particular,” Brobyn said, “the best protection for employees right now is to have a medical card.”

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