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Marijuana Legalization and Employer Drug Screenings

Sixteen states and D.C. have legalized marijuana for recreational use, with more likely coming in the future.

Sixteen states and D.C. have legalized marijuana for recreational use, with more likely coming in the future. 

State laws vary. While marijuana is still illegal under Federal law, some states allow employers to test for and deny or terminate employment based on a positive marijuana drug test, regardless of its legal status in the state. Others, like New York and New Jersey, limit or prohibit employment decisions based on a positive test for marijuana. Philadelphia and New York have passed laws prohibiting pre-employment marijuana screening entirely for most employers. States and cities have specific and differing laws around whether employers can take adverse action against employees for marijuana use, depending on where it was consumed, the legal status in the state, the type of job they do and more. 

Screening for marijuana is becoming more complicated as more states and cities pass laws allowing their use. Multistate employers or employers who operate in a place where its use is legal outside of work may consider dropping marijuana from their drug testing regimen completely.  

Amazon recently announced it will entirely stop testing its employees for marijuana and other companies are likely to follow suit. 

Even if drug use is legal in your state, employers can prohibit employees from being under the influence on the job, but the practical and legal challenges to defining what it means to be “under the influence” are particularly complicated for marijuana, and should be carefully determined beforehand by your legal and HR teams. 

For certain jobs, including those related to driving vehicles or operating heavy machinery, employers may still be required to do drug screening after an accident, including tests for marijuana. Post-accident drug screening  is closely regulated by the DOT and OSHA, and your legal team should be heavily involved in creating policies around any post-incident testing. 

For now, it seems that the changing landscape around marijuana isn’t affecting post-accident drug screenings too much, but the days of random and pre-placement testing for marijuana seem numbered.

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Disclaimer: This post is meant for general information and educational purposes only and does not constitute, and is not intended as, any form of medical, legal or regulatory advice or a recommendation or suggestion regarding the same.  No recipient of this information should act or refrain from acting on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.