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There are now 33 states that have made Marijuana legal for medical use, and 11 states that have made Marijuana legal for recreational use, so what does this mean for employers and employees? Though Marijuana is legal in most states, it is still classified by the federal government’s DEA as a schedule one drug— meaning it has been defined as having “no currently accepted medical use, and a high potential for abuse.” 

State by State Laws Vary

The laws surrounding marijuana have become confusing when it comes to enforcement in law and drug policies for public and private companies. Here, you will find answers to these questions based upon what precedent and laws have put forth, but follow the in-text links to find out more about your specific state. 

Can Employers Test for Marijuana in Legalized States?

Employers can, in most cases, still drug test potential and current employees for marijuana use, and make hiring and firing decisions based upon those results, however, in some of the 33 states where it has been legalized there are anti-discrimination laws put in place to prevent an employee from being fired, or from not being hired, due to their marijuana use, so it is crucial to check your state laws here to know where your state stands. 

I Am An Employer, Should I Continue To Test For Marijuana? 

Within a workplace, the safety of every employee, employer, and person within the workplace should be the top priority. Weed can impair the judgement of the user, so testing employees that use company vehicles, heavy machinery, tools and/or potentially dangerous objects at work, should be tested for the safety of all in the workplace.

Federal Regulations

 The U.S. Department of Transportation does tests for marijuana and other substances for any commercial drivers, truck drivers, bus drivers, train operators, etc. Also, if your company is at all provided with federal government contracts, or monies, then drug testing is required. 

Are There Exceptions for Those Who Have a Medical Card?

Depending on the state, there may be exceptions that enable the use of marijuana, however all states, make it illegal to use marijuana in the workplace. Off-duty use within legal states may be condoned, but testing is still allowed in most cases, so long as there isn’t descrimination in hiring and firing according to state laws. However, with testing there is a large margin of error, in that no assumptions can be made from a positive test as to whether the person in question is a habitual user or the positive test was a one time exposure to marijuana. It is again crucial to know your state’s laws when it comes to this topic. 

For Those States that Make Medical Marijuana Use Allowed Legally and Off-duty, is it Legal to Fire an Employee that has Tested Positive for Marijuana Use?

This does depend on each state, however, with safety in mind, if an employee is impaired at work, there is grounds for dismissal. If an employee tests positive, in a medically legal state, and the employee has a medical card, terminating the employee comes with some legal baggage. It is important to take into account whether or not the employee is working under the influence of marijuana, if it is not clear, but there is a positive test, consult your state laws to see what is actionable in your situation. 

Illegal in Your State- Hiring and Firing Is Up To Employer

If you live in a state where marijuana is illegal, dismissal and/or not hiring a potential employee is at the discretion of the employer, if an employee or potential employee tests positive for marijuana use. 

What are some of the signs of marijuana impairment?

  • Strong marijuana odor
  • Dilated pupils or watery eyes. 
  • Displays of confusion.  
  • Slurred speech or an inability to talk or complete sentences.
  • Irritability or drowsiness.
  • Unconsciousness or unresponsiveness.

Contact Us With Your Questions

With the reopening of states and the workplaces therein, background checks and drug testing is a crucial tool in creating a transparent and accountable environment in your workplace. Here at ESS we are here to make the burden of hiring new employees that much simpler. Call us if you have any questions at all about drug testing in your workplace, we’re here to