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Drug Testing in the Workplace

Cannabis Legalization and Drug Testing

by Neal Brown . Updated: November 13, 2021

Workplace Drug Testing and Cannabis Legalization

While cannabis is still illegal at the federal level, states are increasingly permitting its use. As of the time of this writing, 34 states have legalized weed for medicinal or recreational use. These policy changes have created unique challenges for companies requiring drug tests before and during employment. Though employers are financially motivated to ensure that workers don’t come in with a buzz, off-the-clock cannabis use would also result in a failed test.

Are workplaces relaxing their drug testing policies to allow for legal consumption during off hours? Are they rewriting the rules for potential employees? Will they implement different guidelines for safety-sensitive and customer-facing positions? Or will they create uniform policies for fear of discrimination lawsuits? The answers to those questions have yet to come.

How Marijuana Legislation Has Evolved

In the past 20 years, cannabis legalization has made national headlines. During the 1990s, only a handful of states and Washington DC had laws on medicinal marijuana use. The number gradually rose at the beginning of the 21st century, yet legal use by adults was still a foreign concept.

Fast forward to 2012, when Colorado’s voters passed Amendment 64, which allowed the recreational use of cannabis. Most legalization activities have come via referendum, but Vermont was the first state to legislatively legalize cannabis. Other states, including New Jersey and New York, have followed suit.

During the same time, the number of states with medical marijuana laws has risen. While the federal government still considers it to be a Schedule I drug under the Controlled Substances Act, it has taken a state-focused approach to the regulation of the industry that has arisen because of legislative changes. Some lawmakers have introduced bills supporting the industry or calling for nationwide legalization, which may bring more cannabis into the workplace.

Employer Drug Testing and Legal Marijuana

These policy shifts have left employers in a difficult position. Many workplaces still have zero tolerance policies on using drugs, including cannabis, in and around the workplace—and they don’t want workers clocking in while they’re high. Marijuana’s legality isn’t the issue; after all, a person can be fired for drinking on the job, although alcohol is legal.

However, finding out if applicants and employees are smoking on or off the clock is a challenge. Impairment due to cannabis use is harder to test for and detect than that related to alcohol consumption, and it’s almost impossible for an employer to determine if a positive marijuana test is the result of usage during working or non-working hours. That’s why many employers have simplified things by implementing outright bans. In some instances, though, state laws have made workplace drug testing policies more complex.

Job Performance and Policy Enforcement

Employer Responses to Changing Laws

Is a Zero Tolerance Policy Sensible