Drug Screening in the Era of Legalized Marijuana

Many states have legalized marijuana for both medical and recreational use, and workplace drug testing laws are evolving. A few states that have legalized cannabis place limits on testing employees and applicants or protect employees from discrimination based on their legal use. However, most states in this position allow employers to test for marijuana use.

If you have a question about employment-related drug testing or have concerns about how the employer handled your workplace drug test results, talk to an employment lawyer in your area. They can explain your rights and any legal options you may have to address the issue.

Federal vs. State Laws on Marijuana Use

Employers can generally require drug testing for job applicants and employees Many have a zero-tolerance policy for drug use. That being said, workplace drug testing laws vary by state and even among municipalities within the same state.

Conflict between federal and state law on important issues isn’t new. Marijuana laws are just one of the latest examples. Under the federal Controlled Substances Act, marijuana is listed as a Schedule I drug, putting it in the same category as heroin and LSD. Schedule I drugs are considered to have a high potential for dependency and no accepted medical use, making the distribution of marijuana a federal offense.

Yet a super-majority of states plus the District of Columbia allow the medical use of cannabis, while more than 20 states and the District of Columbia allow its recreational use. Nine states allow the use of low THC, and high cannabidiol products for medical reasons in limited situations.

Although illegal under federal law, federal administrations have generally not interfered with state-regulated programs.

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Employee Rights In Marijuana-Legal States

Even in states where marijuana is legal, employers are entitled to enforce their own policies on marijuana use. For purposes of workplace safety, employers in many industries have an interest in knowing whether employees show up to work impaired by substances. Many employers choose to enforce a zero-tolerance policy and can do so through testing programs. However, many states offer employees protection for conduct that occurs off-duty.

Even if marijuana testing produces a positive result, an employer must assess the situation to understand how the law works in their jurisdiction. A positive test does not automatically mean the employee is impaired due to medical use or recreational use on their own time. Below are examples of drug testing policies in states that have legalized marijuana.

California

Although California employers can prohibit cannabis use in the workplace, they are prohibited from asking employees about their cannabis use outside of work. Employers cannot discriminate against workers for their off-duty cannabis use.

Employers cannot use results from hair or urine tests in employment decisions. Employees in construction and applicants for federal jobs with background checks are excluded (since marijuana is still illegal under federal law).

Colorado

Nothing in Colorado’s law requires an employer to accommodate the use or sale of marijuana in the workplace. The law does not limit employers’ ability to use urine testing or to have a drug testing policy that restricts the use of marijuana by its employees.

Colorado law allows reductions in workers’ compensation and unemployment benefits for the use of non-prescribed substances that cause impairment. Some Colorado employers removed marijuana from their pre-employment drug screenings.

New Jersey

Laws in New Jersey authorize recreational and medical use of marijuana. Employers can’t fire or take other actions against an employee based solely on the presence of cannabis metabolites in the employee’s body.

However, a test can be combined with other evidence to show impairment during the employee’s work hours, which can support an adverse employment action. When there’s a reasonable suspicion of an employee’s use of cannabis while working, and employer can require drug testing.

New York

Medical cannabis and recreational use are legal in New York. The state’s law prevents employers from testing current and prospective employees for cannabis use.

Employers are prohibited from discriminating against employees based on the employee’s use of cannabis outside the workplace and work hours. However, an employer can take an adverse employment action if the employee is impaired by cannabis while working.

Special Considerations for Safety-Sensitive Positions

In safety-sensitive positions such as trucking, aviation, railroads, healthcare, or construction and heavy industry, employees must be drug-free. There are no exceptions, even if the state legalized medical marijuana and the employee has a valid medical marijuana prescription under the state’s law.

Get Legal Help

Employers must balance maintaining a drug-free workplace while respecting employees’ legal rights. If an employment drug screening has impacted you, you can get legal help from an experienced employment lawyer in your area. They will explain the laws that apply to you and your legal options. Get help today.