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What Employers Should Know About Drug Testing for Marijuana

Drug-free workplace policies are implemented to keep work environments safe.

In determining a policy, there are liberties employers have and laws and guidelines they must follow. Employment drug testing certainly isn’t a free-for-all for employers, and several factors require consideration.

A common question we receive from employers revolves around the legalities or best practices of testing for THC (marijuana).

Well, this is an issue with a lot of nuance.

The Challenge

Regarding THC, there is an emerging culture of acceptance as medicinal and mental health benefits are cited more abundantly in legitimate studies.

Many states have legalized the medicinal use of THC, and more are beginning to consider recreational tolerance. As of 2023, THC is considered recreationally legal in the following states:

  • Alaska
  • Arizona
  • California
  • Colorado
  • Connecticut
  • Delaware
  • Illinois
  • Maine
  • Maryland
  • Massachusetts
  • Michigan
  • Minnesota
  • Missouri
  • Montana
  • Nevada
  • New Jersey
  • New Mexico
  • New York
  • Oregon
  • Rhode Island
  • Vermont
  • Virginia
  • Washington
  • Washington, D.C.

Graph depicting states where marijuana is recreationally legal

Given this new and evolving outlook on THC, employers are left wondering if the recreational use of the substance (particularly in the states above) should be met with adverse action.

Legal Ambiguity

There’s one very important fact that makes the marijuana issue quite tricky:

Marijuana is still illegal federally.

While some states have passed legislation to legalize marijuana, it is still against federal law to be in possession of it, regardless of the state.

Therefore, there are cases where the substance can be both legal and illegal simultaneously.

Is Marijuana Use Harmful to a Work Environment?

Perhaps the question of greatest import to employers is this:

Could an employee’s recreational use of marijuana contribute to an unsafe workplace; does it conflict with company standards?

Impairment Considerations 

While THC has been shown to offer some benefits, it remains a psychoactive compound.

The consumption of THC has been proven to affect (sometimes significantly) reaction time, sustained attention, and memory– impairment that could potentially cause problems in a number of work environments.

Additionally, a recent research study shows that TCH impairment can last up to 10 hours after consumption.

Is Workplace Use Increasing?

From 2017 to 2021, marijuana drug test positivity increased by 41.9 percent in post-accident screenings.

Overall, marijuana drug test positives are up nearly one-third from just over a decade ago.

There is a considerable upward trend.

What Does the Law Say?

Given that marijuana remains federally illegal, whether or not an employer tests for marijuana is largely a matter of choice…except in a few areas.

As of 2023, the following states in the U.S. currently prohibit employers from testing their prospective or current employees for THC:

  • New York (Minor Exceptions)
  • Philadelphia (Pre-Employment Restrictions)
  • Nevada (Pre-Employment Restrictions)

As of 2023, the following states in the U.S. prohibit employers from taking adverse action based solely on a positive THC drug screen.

  • Arizona
  • Delaware
  • Connecticut
  • Michigan
  • New Jersey
  • Oklahoma (Medical card holders)

Graph showing which states currently have laws regarding drug testing for THC

Additional Reading: Clearing the Fog Surrounding Cannabis Law 

Final Thoughts

Here are some key takeaways from this article:

  • While recreationally legal in some states, marijuana remains federally illegal.
  • THC is a psychoactive compound proven to cause impairment for up to 10 hours after use.
  • Recreational marijuana use has been steadily increasing over the past decade.
  • Six states (see above) don’t allow adverse action to be taken against prospective or current employees due solely to a positive THC drug test, and three states (see above) don’t allow THC to be tested for at all.

In many cases, the employer decides whether or not to include marijuana on their drug testing panel. This decision should be made after careful consideration and duly communicated to the organization’s drug screening provider. But in some states, there are laws that veto employer preference.

Laws surrounding marijuana are constantly changing from state to state, so be sure to stay aware of regulations that apply to you.

For more information about drug screening best practices, feel free to reach out to us.

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