Is Workplace Marijuana Testing Legal?

It is apparent that many believe the use of marijuana on one’s own time off should not be a workplace policy violation. It is important for employers to update, revise or create new drug policies.

Employment drug testing for marijuana has become a hot topic and also extremely complex and controversial. It has become apparent that many believe the use of marijuana on one’s own time off should not be a workplace policy violation. Of course, for employers regulated by the United Department of Transportation (DOT), the use of marijuana is clearly prohibited and testing for the 5 panel drug test including marijuana is required.

For non-regulated drug testing, several States which we will discuss below have passed laws to restrict marijuana testing in the workplace. Other States have passed laws that limit the adverse action that an employer can take when an employee does test positive. Let’s jump into the 5 States where you should be most concerned about employment testing for marijuana: New York, Nevada, Minnesota, California and Washington.

In all areas of the United States, it is important to note that the use of marijuana at work or being impaired from marijuana at work can be violations of a company’s drug free workplace policy. Currently there are no testing mechanisms that can detect marijuana impairment, but articulable symptoms of impairment can often be recognized. In this current climate, supervisor training for reasonable suspicion has become critically important to protect employers from the liability of having an impaired employee causing issues due to potential accidents and workplace disruption.

New York State would be the most restrictive. Recreational and medical cannabis use are legal, employers are prohibited from testing current and prospective employees for marijuana. This is the first state to explicitly prohibit workplace testing for cannabis altogether. There is an exception when an employee appears to be visibly impaired at work or possesses marijuana on the job, an employer would be able test and penalize a worker. Other exceptions apply allowing an employer to conduct a marijuana drug test if federal (including DOT) or state law requires drug testing or makes it a mandatory requirement of a position.

In Nevada there is legal recreational and medical cannabis. Employers are prohibited to turn down job applicants on the basis of having tested positive for marijuana in the company’s pre-employment drug screening. Exceptions include firefighters, EMTs, truckers, and others who are required to drive as part of their job. Additionally, the law permits newly hired individuals to undergo an additional test within the initial 30 days of their employment, which they can personally arrange and finance. The employee has the freedom to select the testing facility of their choice and subsequently provide the employer with the updated test results. This provision empowers the employee to challenge or disprove any conclusions drawn from the initial employment test. It is mandatory for the employer to acknowledge and duly consider the new results provided by the employee.

Minnesota became the 23rd state to legalize recreational marijuana for adults. The Minnesota Lawful Consumable Products Act (“CPA”) and the Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”) went into effect on August 1, 2023. Minnesota law now prohibits employers from disciplining or terminating employees (or refusing to hire applicants) who “use or enjoy lawful consumable products” outside of work. Employers however are permitted to take disciplinary action or terminate employees who engage in the use, possession, impairment, sale, or transfer of cannabis products while on duty, within the workplace, or while operating company vehicles, machinery, or equipment. Furthermore, employers retain the right to prohibit off-duty cannabis use if allowing it would contravene federal or state regulations or result in the loss of financial or licensing advantages under federal law.

So currently in Minnesota regarding testing for cannabis employers are not allowed to mandate or ask for such tests or decline to hire an applicant solely based on testing positive for cannabis unless mandated by federal or state regulations. Additionally, Minnesota law now generally prohibits cannabis testing for existing employees during regular medical check-ups or in a random and unjust manner. There are some exceptions where employers can still require testing for marijuana such as:

• Peace-officer positions;
• Safety-sensitive positions;
• Firefighter positions
• Positions requiring a commercial driver’s license or the employee to operate a motor vehicle for which federal or state law requires drug or alcohol testing;
• Positions requiring face-to-face care, training, education, supervision, counseling, consultation, or medical assistance to (i) children, (ii) vulnerable adults, or (iii) patients receiving healthcare services from a provider;
• Positions of employment funded by a federal grant; and
• All other positions for which federal or state law requires cannabis testing.

California has a long history of legal use of medical marijuana and legal recreational marijuana use since 2016. As of January 1, 2024, California law prohibits discrimination against applicants and employees for their off- duty, off- site cannabis use. Employers can still conduct preemployment and existing employee marijuana testing, but they must use valid tests that look only for the psychoactive compounds in cannabis. This would exclude traditional urine and hair drug testing. Oral fluid drug testing would be a viable option. Eliminating marijuana from the drug testing panel would be another option. In either case updating drug testing policies would be well advised.

Several exceptions to the California law on marijuana drug testing would include:

• Workers in the building and construction industries;
• Roles necessitating a federal background check or security clearance;
• Positions mandated to undergo drug testing in accordance with state or federal regulations or government agreements.

Also in effect as of January 1, 2024, the State of Washington has a law similar to California, but it only applies to pre-employment marijuana testing. With limited exceptions there should be no pre-employment drug testing for marijuana. The law does not preempt state or federal laws requiring an applicant to be tested for controlled substances, and it does not apply to applicants seeking positions requiring a federal background investigation or security clearance, certain public safety positions, DOT regulated positions and certain safety-sensitive positions previously identified by the employer.

Given the intricacies of marijuana drug testing laws throughout the United States, employers should be looking to update, revise or create new drug free workplace policies. Leadership at US companies must make decisions regarding marijuana drug testing. For a complete review of all States and laws regarding marijuana drug testing visit: Marijuana in the Workplace.