With more states legalizing recreational marijuana, it is becoming more complex as to where employers can test employees for THC. The legalization of medical marijuana makes it even more complicated.
The 2022 midterm elections gave us two more states that have legalized recreational marijuana: Maryland and Missouri. Marijuana legalization initiatives in Arkansas, North Dakota, and South Dakota did not pass. See below for the list of states, as of November 2022, that have legalized the recreational use of marijuana. Each state has its own rules regarding how much cannabis people can possess, gift, and grow.
- Maryland: Legalized in 2022
- Missouri: Legalized in 2022
- Connecticut: Legalized in 2021
- New Mexico: Legalized in 2021
- New York: Legalized in 2021
- Virginia: Legalized in 2021
- Arizona: Legalized in 2020
- Montana: Legalized in 2020
- New Jersey: Legalized in 2020
- Vermont: Legalized in 2020
- Illinois: Legalized in 2019
- Michigan: Legalized in 2018
- California: Legalized in 2016
- Maine: Legalized in 2016
- Massachusetts: Legalized in 2016
- Nevada: Legalized in 2016
- District of Columbia: Legalized in 2014
- Alaska: Legalized 2014
- Oregon: Legalized in 2014
- Colorado: Legalized in 2012
- Washington: Legalized in 2012
Testing for Marijuana in the Workplace
A few topics to discuss in this article include the following (click to see the full topic below):
- States With No Restrictions Concerning Marijuana Testing
- States Where You Can Test for Marijuana, but You Cannot Take Adverse Action Against an Applicant or Employee Based Solely on a Positive Marijuana Test
- States or Local Areas Where You Cannot Perform Testing for Marijuana for Applicants or Employees
- States Where You Must Provide an Accommodation for Authorized Medical Marijuana Users
A few notes, exceptions, or carve-outs to be aware of include the following:
- For United States Department of Transportation (DOT) drug testing; marijuana must be included with no exceptions. Those testing positive must be removed from safety-sensitive positions.
- Some states grant certain carve-outs, allowing marijuana testing for other safety-sensitive positions, or when testing might be required by Federal or state regulations.
- In all states, employers can have policies that prohibit employees from using marijuana in the workplace or while working or being impaired from marijuana while in the workplace or working.
- Be aware of where the applicant or employee will actually be working, not necessarily where the employer is located.
- There is nothing that prohibits an employer (except for DOT testing) from dropping marijuana from the drug test panel.
- When hiring an applicant, or for an existing employee required to have a drug test, do not stop the testing process simply because the applicant or employee states they have a medical marijuana card. Follow your company policy for drug testing.
- Employers should not refuse to hire, discipline, terminate, or discriminate against applicants and employees solely on the basis of being a qualified medical marijuana patient.
States With No Restrictions Concerning Marijuana Testing
This varies from state to state. In most areas of the United States, drug testing of applicants and employees is legal and without restriction.
Marijuana is not at all legal (medical or recreational) in the following states (as of November 2022):
- Idaho
- Nebraska
- Indiana
- Wisconsin
- Idaho
- North Carolina
- Tennessee
- Kentucky
- Wyoming
- Texas (low-level THC authorized)
In the states listed above, the laws make no mention of any restrictions regarding marijuana testing within the workplace.
There are other states that have a medical marijuana or recreational marijuana law but no restrictions on employee testing for marijuana. In those states, nothing prohibits the employer from establishing a drug-free workplace policy, conducting testing, and taking adverse action against an employee or applicant based on the written policy. The written drug-free workplace policy will always be the best practice in those states to avoid liability.
- Arkansas (medical marijuana)
- Florida (medical marijuana)
- Georgia (medical marijuana)
- Hawaii (medical marijuana)
- Indiana (medical marijuana)
- Iowa (medical marijuana)
- Kentucky (medical marijuana 1/01/2023)
- Louisiana (medical marijuana)
- Mississippi (medical marijuana)
- New Hampshire (medical marijuana)
- North Dakota (medical marijuana)
- Ohio (medical marijuana)
- Pennsylvania (medical marijuana, except Philadelphia)
- Puerto Rico (medical marijuana)
- Rhode Island (medical marijuana)
- Utah (medical marijuana)
- Vermont (medical marijuana)
- West Virginia (medical marijuana)
- California (medical and recreational), expected to change as of January 2024
- Colorado (medical and recreational)
- District of Columbia (medical and recreational) Illinois (medical and recreational)
- Maine (medical and recreational)
- Maryland (medical and recreational)
- Massachusetts (medical and recreational)
- Michigan (medical and recreational)
- Missouri (medical and recreational)
- Montana (medical and recreational)
- Nevada (medical and recreational)
- New Mexico (medical and recreational)
- Oregon (medical and recreational)
- Virginia (medical and recreational)
- Washington (medical and recreational)
States Where You Can Test for Marijuana, but You Cannot Take Adverse Action Against an Applicant or Employee Based Solely on a Positive Marijuana Test
There is a difference between testing for marijuana and being able to use the results of the test for adverse action against an applicant or employee. That is what is causing confusion among employers. You can do a marijuana test, but you cannot take action against an employee or refuse to hire an applicant based solely on a positive test for marijuana. Because of that confusion, employers might decide it is not worth testing for marijuana and remove marijuana from the drug test panel.
Those states include Arizona, Delaware, Connecticut, Michigan, New Jersey, and Oklahoma (medical marijuana license holders)
States or Local Areas Where You Cannot Perform Testing for Marijuana for Applicants or Employees
As of November 2022, it is quite limited where the law states marijuana testing is illegal:
New York is one of those states, with some minor exceptions. New York does allow testing for marijuana when there are signs and symptoms of impairment of being under the influence.
Philadelphia restricts pre-employment marijuana testing.
Nevada has banned preemployment testing for marijuana.
Reasonable suspicion testing is typically exempt from those restrictions concerning testing for marijuana.
There might be other exceptions; check your state law.
DOT testing is required by Federal law, and there are no restrictions on DOT drug testing. For DOT-regulated employers, the DOT regulations must be followed.
States Where You Must Provide an Accommodation for Authorized Medical Marijuana Users
States that have medical marijuana laws only (recreational use is still illegal) include the following:
- Alabama
- Arkansas
- Delaware
- Florida
- Hawaii
- Louisiana
- Maryland
- Minnesota
- Mississippi
- Missouri
- New Hampshire
- North Dakota
- Ohio
- Oklahoma
- Pennsylvania
- South Dakota
- Utah
- West Virginia
Accommodation for Authorized Medical Marijuana Users Required
The states listed below have statutory language requiring employers to not refuse employment or otherwise discriminate against a qualifying medical marijuana patient.
- Nevada*
- New York
- New Jersey
- Arizona
- Arkansas
- Connecticut
- Delaware
- Oklahoma (medical marijuana license holders)
- Pennsylvania
- South Dakota
- Rhode Island
- West Virginia
- Minnesota
- Maine
- District of Columbia
*Nevada has a specific law requiring employers to attempt to make reasonable accommodations for employees who have a valid medical marijuana patient ID card.
There are many exceptions for safety-sensitive workers. No accommodations can be made for DOT-covered positions. State laws should always be checked and company policy decisions put into writing.
Summary
Check your state laws concerning marijuana and implement drug-free workplace policies that comply with the state laws. Review the National Drug Screening Marijuana in the Workplace web pages, which provide comprehensive information to help with those issues, including the following:
State-by-State Guide to Workplace Marijuana Laws
Workplace Considerations for Marijuana Use
Checklist of Impacting Issues for Employee Use of Marijuana
National industry consultant Joe Reilly can assist employers with questions or policies regarding marijuana in the workplace.
