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How Marijuana Legalization Will Affect Drug Testing in the Workplace

What Employers Need to Know About New Marijuana Legislation

In what has become an increasingly prevalent trend across the U.S., over a dozen states have officially legalized the recreational use of marijuana for individuals over the age of 21. While this new legislation will have a tremendous impact on strengthening local and state economies, it also will have interesting implications for employers and marijuana testing, as well. So what do organizations need to know about these new laws involving marijuana? Can employees still be forced to undergo a traditional drug test? Acara’s Associate Counsel Earl Cantwell is here to present the latest legal insights to help employers remain in the loop about the business impacts of changing legislation.

Is it legal for employers to conduct drug tests for new hires?

Today’s most widely accepted drug test is the five-panel drug screen. This test detects the use of commonly abused substances including amphetamines, cocaine, marijuana, opiates, and phencyclidine (PCP). However, based on recent legislation passed in the State of New York and others across the United States, employers may be prohibited from terminating, denying employment to, or otherwise discriminating against employees based on their consumption of recreational marijuana. So while it is still legal for employers to ask their new hires to undergo a drug test, several states—such as Illinois, Nevada, New Jersey, Virginia, and Washington, D.C.—have barred the discrimination of adult workers based on prior marijuana use. And in some cities like New York, marijuana testing is completely prohibited. Although the use of recreational marijuana remains illegal at the federal level, look for similar pre-employment rules that protect marijuana users to continue spreading across the country.

Can employers prohibit their employees from using marijuana?

Employers operating within states that have legalized the use of recreational marijuana are legally allowed to forbid their employees’ use of marijuana in the workplace. For example, organizations can prohibit the consumption of marijuana during work breaks—both paid and unpaid—and meal periods.

What can my organization do to prepare for future changes in labor laws related to marijuana use?

In addition to staying up to date on pertinent state legislation, companies should continuously review their employee handbooks on a regular basis. Potential restructurings of specific pre-screening requirements could be looming in the near future, so organizations can begin to proactively train managers and supervisors on the importance of adhering to state laws related to marijuana use and testing. In addition, leaders must also be made aware of how to properly handle a situation in which an employee is suspected of being impaired by marijuana at work.


As discussions surrounding recreational marijuana legalization continue to evolve throughout the United States, so too do state-wide laws surrounding employee drug testing. While it remains to be seen just how many states will jump on board with this emerging trend, one thing is clear: candidate drug testing in the future may be severely limited in light of this new legislation. The question of marijuana testing in the workplace looks to be a contentious topic—one that will be hotly debated for years to come.

Curious to know what hiring managers can and can’t ask candidates in a job interview? Our latest Acara E-Book has all this information—and more. Check it out here!

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