As of April 2022, 37 states have legalized medical marijuana, and 18 states and the District of Columbia have legalized recreational marijuana. Other states have plans either to legalize marijuana within the year or to put the issue on the ballot for voters to decide.

With state laws changing rapidly, many organizations are wondering about drug testing candidates and employees. Can an applicant be rejected if they test positive for marijuana? Can an existing employee be terminated if marijuana is found during a drug test? What if the applicant or employee has a medical marijuana card?

The answers can vary widely, depending upon the state and the position. Here’s what current laws and regulations allow (and don’t).

Federal and State Laws

Possession or use of marijuana remains illegal under federal law. But state laws are changing rapidly, including some that now limit employers from firing an employee for failing a drug test. Courts have begun siding with workers who say their off-duty use of cannabis for medical reasons led to their unfair dismissal. Recent court cases have left employers facing discrimination charges for taking action against workers who fail marijuana tests.

In October 2021, New York became the first state in the country to ban marijuana testing for both applicants and employees. The law includes exceptions for such jobs as public-safety workers, trucking, mass transit, airline, and rail workers; all must be screened for drug and alcohol use.

In places where marijuana use is legal, employers are banned from requiring job applicants to pass a marijuana screen as a condition of employment. For example, employers in some locations—including Nevada and New York City—cannot consider positive pre-employment marijuana screens. Again, some exceptions apply, particularly for safety-sensitive positions.

Medical Marijuana Cards

While marijuana use is not protected under the Americans with Disabilities Act (ADA), businesses still need to consider the laws that are in place and how they will handle a situation where an employee has a medical marijuana card. Most people who qualify for a medical marijuana card also qualify for protection from consequences of a failed employer drug test. Exceptions mainly apply to federal employees and contractors and to employees working in safety, defense, and transportation, as mentioned above.

States that allow recreational use of marijuana do not exempt employees from workplace drug testing policies. An employee without a medical marijuana card can still be subject to discipline for violating any company policy regarding drug use.

Tests and Dismissals

Of the many states that have legalized medical marijuana, about a dozen include protections for employees’ off-duty use with a valid prescription, as long as employees don’t show up to work under the influence of marijuana. In these states, employers cannot fire medical marijuana users based solely on a positive drug test. The employer would need some evidence that employees were under the influence of marijuana at work or during work hours.

Other states with medical marijuana laws either specifically allow employers to fire employees for off-duty use or do not clearly address the issue. In states without a clear directive, courts often (but not always) side with the employer. For example, courts in California, Colorado, and Oregon have all held that employees may be fired for medical marijuana use, even when the employee has a serious medical condition and only uses marijuana during non-working hours.

Best Practices for Recreational Users

Organizations have every right (and expectation) that employees will be unimpaired and capable of performing their job duties while at work. The problem is that employees can test positive for marijuana if they used it over the weekend or even a few weeks ago.

According to the Labor Department, an employee cannot be fired or disciplined if they use marijuana on their own time outside of work—again, making exceptions for certain sensitive or safety-related positions.
These are the current best practices for organizations that have or are considering a drug testing program or that are adding or revamping drug policies.

  • Don’t tolerate marijuana use on the job, just as you wouldn’t tolerate alcohol use.
  • Train managers to spot signs of impairment.
  • Think about the type of test your company uses and stay on top of developments in testing technology.
  • Talk to a lawyer about relevant state laws before setting policies and testing rules.
  • For companies operating in different states, know that policies may need to vary by location.
  • Educate employees about the company marijuana use policy and the repercussions for failed tests, including random, post-accident or reasonable suspicion tests.

As states continue to legalize medical and recreational marijuana, legalization doesn’t allow workers to be under the influence on the job. However, laws vary by state regarding how employers can discipline employees suspected of reporting to work while impaired. For example, in Illinois, an employee who is found to be under the influence of marijuana must receive a reasonable opportunity to respond to any resulting disciplinary action.

The Lindenberger Group can help organizations remain compliant and mitigate potential liability for marijuana laws, as well as help manage and update drug policies. For more information or to discuss your HR needs, please contact us at 609-730-1049 or send us an email.