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To Test or Not to Test: Considerations for Employers Considering the Future of their Cannabis Testing Practices

The latest Gallup poll shows that 68% of Americans support the legalization of cannabis. Additionally, the rate of positive cannabis test results has jumped over the past decade. And according to recent reports, some major employers have stopped testing job applicants for cannabis. As a result, other employers may wonder if they should change their approach to an increasingly popular drug that is legal for medical or recreational use in most states. However, the decision may not be so easy. Here, we outline a variety of questions that might help affected stakeholders weigh the practical and legal risks before making this important decision.

States have been passing medical and recreational cannabis laws at an increasingly rapid pace. Years ago, when states first entered the arena, the laws and some courts interpreting them gave employers wide latitude to enforce their drug-free workplace policies, such as in California and the United States. Colorado. But then courts in Connecticut and Massachusetts, for example, handed down game-changing rulings, finding that federal Controlled Substances Act (CSA) and state law do not conflict because the CSA does not prohibit the employment of users of illegal drugs or that employers may have a duty to accommodate users of medical cannabis under a state disability discrimination law. Since then, more and more states have enacted new laws and courts are issuing new rulings that arguably make it more difficult for employers to enforce their drug-free policies in the workplace, especially if they have a large geographical footprint. Indeed, as we reported hereIn 2021 alone, a few states passed cannabis laws with clear employment protections not previously seen in previous laws, including New Jersey and New York.

Employers are now debating whether they should forego cannabis testing altogether. Here are some questions for employers and their stakeholders to consider:

  • What does a positive test result even tell an employer? Due to the way the body metabolizes the active compound in cannabis (tetrahydrocannabinol or THC), it can, unlike alcohol, often present days or weeks after use, creating false positives of intoxication and /or impaired. Experts don’t yet agree on how much THC needs to be present to create a deficiency. And since some states prohibit employers from taking action against someone based solely on a positive test result in the absence of other clues of impairment, employers question the usefulness of a cannabis screening test before hiring.
  • Some employers must test for cannabis. Companies that are federally regulated or do business with them may be required to test cannabis. Safety-sensitive positions regulated by the Department of Transportation, such as commercial motor vehicle operators, pilots and pipeline workers, are subject to mandatory alcohol and drug testing. The DOT issued separate bulletins reminding DOT-regulated employers and their employees that it “remains unacceptable for any safety-sensitive employee to undergo drug testing under the Drug Testing Regulations. Department of Transportation Drugs to use marijuana”, even for medical purposes. Government contractors may need to review their contracts to see if they mandate cannabis testing.
  • Safety is an important consideration. The “General Duty Clause” of the Federal Occupational Safety and Health Act states that employers provide “employment and a workplace that are free from recognized hazards that cause or are likely to cause death or serious bodily harm to their employees”. Additionally, according to the National Safety Council, employees impaired by cannabis pose a safety risk in the workplace, particularly if they work in safety-critical positions, where an impairment will expose the employee and others at risk of serious physical injury or death. . Due to the occupational safety and health risks posed by cannabis use in the workplace, the National Safety Council advises employers to adopt a zero tolerance policy for cannabis use in critical positions for the safety. That said, such a policy could conflict with state or local cannabis laws that may not contain exemptions for safety-critical positions. Safety-conscious employers may wish to pursue reasonable suspicion and post-crash cannabis testing even if they eliminate the drug from their pre-employment panel.
  • Federal contractors must maintain a drug-free workplace. However, the federal Drug-Free Workplace Act (DFWA) is silent on drug testing. Instead, it simply requires that a government contractor have a clear drug-free workplace policy that reminds employees that the possession, distribution, and use of controlled substances are prohibited in the workplace. Since the law focuses on possession and use in the workplace, not drug testing, there is arguably no conflict between the DFWA and any state or local cannabis law, allowing a government contractor to modify its drug testing practices while still complying with the DFWA.
  • Testing may violate state or local cannabis or “lawful activities” or “lawful products” laws. New York and Montana have become the latest states to ban an employer from discriminating against an applicant or employee for using cannabis outside of work. Recently, the New York Department of Labor announced its position that all pre-employment cannabis testing is illegal, with no exceptions or consideration for those applying for safety-critical positions. Philadelphia also prohibits pre-hire cannabis testing, and Nevada prohibits an employer from taking action based on a positive cannabis test result (both recognize exceptions for safety-sensitive jobs). California recently considered legislation banning most pre-employment cannabis testing, and therefore we can expect these types of restrictions to arise in other jurisdictions.
  • Accept the medical use of cannabis. Most states have medical cannabis laws and, as mentioned above, some allow applicants and employees to sue under a state disability discrimination law, some courts even judging that an employer might have to consider adapting the use of cannabis for medical purposes. And while the Americans with Disabilities Act does not require employers to accommodate cannabis, employers should still engage in an interactive dialogue about disability.
  • Labor Market Considerations. As public opinion has shifted and more Americans are using cannabis for recreational or medicinal purposes, employers are struggling to attract and retain talented workers. Employers faced with this dilemma might reconsider their stance on cannabis, especially for positions that do not pose a safety risk to others.


This rapidly changing legal landscape presents new challenges for employers, especially multi-state employers. Employers must balance several competing issues, including complying with conflicting federal, state, and local laws, maintaining a safe work environment, protecting candidate and employee privacy and other legal rights, and attraction and retention of quality talent. Employers considering stopping cannabis testing should work with an experienced attorney to discuss and weigh the various considerations discussed above. Employers should also review their workplace drug testing policies to ensure they comply with existing and soon-to-be-enacted state and local laws.

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