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Increasing Marijuana Legalization Complicates Pre-Employment Drug Testing

Each year, more states across the U.S. continue to legalize marijuana for recreational and medical use. Currently, 19 states and the District of Columbia have legalized recreational marijuana and 36 states and the District of Columbia allow medical marijuana use.

LHSFNA Management
Noel C. Borck

With so many states allowing marijuana use in some capacity, many employers, unions, health and safety professionals and others are considering whether marijuana should be excluded from workplace drug testing, particularly pre-employment testing.

“Employers are facing an increasingly complex task of navigating rapidly evolving marijuana laws, which vary from state to state,” says LHSFNA Management Co-Chairman Noel C. Borck. “Some states that have legalized medical marijuana don’t require companies to accommodate employees’ use, yet in other states, companies must do so. Despite these changes, no state law allows employees to use marijuana during work hours or report to work impaired.”

Several court cases where employees have tested positive for THC have now made their way through the legal system. Sometimes courts have sided with employers, while other times they have sided with the employee, thus complicating things further.

In addition, positivity rates for marijuana use continue to rise on pre-employment drug tests, making it difficult for companies to fill jobs in some areas. In 2020, marijuana positivity rates in the general U.S. workforce showed another double-digit year-over-year increase. Positivity rates were lower in states with only medical marijuana use or no form of legalized marijuana use compared to states with legalized recreational use. In a job market with a noted shortage of skilled workers and with anticipation of a major infrastructure bill passing, removing barriers to getting people hired can be an attractive option.

Amazon, one of the largest private employers in the U.S., said in June it would no longer test most job applicants for marijuana. The company said it instead treats cannabis use the same as alcohol use, and will continue to perform impairment checks on the job.

State laws do not change the fact that all federal Department of Transportation (DOT) drug testing programs are still required by federal law to test for a specific drug panel, which currently includes marijuana. Marijuana is still considered a Schedule 1 controlled substance at the federal level, meaning there is currently no accepted medical use and a high potential for abuse.

General drug-free workplace programs have more flexibility compared to federal DOT drug-testing programs, both in terms of whether to test for marijuana at all and under what circumstances. A private, non-federally regulated employer can modify their drug-testing policy to reflect what works for their company.

When implementing or updating workplace policies concerning the possession and use of marijuana, consider the following:

  • No law requires employers to allow marijuana use during work hours.
  • No law requires employers to allow employees to report to work impaired.

Next steps for employers given the current state of marijuana legislation:

  • Carefully review all state laws where your company does business.
  • Consider whether removing marijuana from a pre-employment testing panel makes sense for your company.
  • Focus on reasonable suspicion testing and how to recognize the signs and symptoms that someone is impaired due to drugs (legal or illegal), alcohol, fatigue, stress or something else.
  • Educate employees on clinical issues relating to marijuana, such as its effects on the body, the length of time it can continue to impair cognitive and physiological functions and the potential impact on workplace safety and performance.
  • Have a clear drug-free workplace program, including a drug-testing policy, and make sure it’s shared with employees.
  • Remember to always seek the advice of a professional or your legal counsel when crafting these policies.

LHSFNA Resources

The LHSFNA offers several publications with more information on marijuana’s health effects and drug-free workplace policies, including Answering Your Questions on Why Using Marijuana Could Cost You Your Job, Marijuana and the Drug-Free Workplace and the Marijuana toolbox talk. You can order these and other publications at

[Jamie Becker is the LHSFNA’s Director of Health Promotion.]

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