Where Is Marijuana Testing for Employees Prohibited?

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.

Testing for Marijuana in the Workplace

A few topics to discuss in this article include the following (click to see the full topic below):

A few notes, exceptions, or carve-outs to be aware of include the following:

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):

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.

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:

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 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.

Marijuana laws USA

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