What You Need to Know About Marijuana and Drug Tests

Tammy Cohen, PHR, SHRM-CP
September 18 2018

Marijuana and drug tests are one of the most often discussed news topics today. Though it has been considered a Schedule I drug since 1970, thirty states and the District of Columbia have legalized it in some form. Eight of those states and D.C. have adopted laws legalizing marijuana for recreational use. Most other places allow for limited use of medical marijuana under certain circumstances. Some state governments have legalized it with specific caveats, such as only allowing for cannabis-infused oils and pills or when used to treat specific illnesses and conditions.

Attitudes about marijuana and drug tests have shifted since the Controlled Substances Act (CSA). One poll found that 83% of people are in support of the legalization of medical marijuana and 64% are in favor of legalizing marijuana for medical and recreational use. These attitudes and the new laws put the drug in a sort of legal gray zone, and, as a result, puts employers in a similar position. Should you make allowances for medical marijuana? What about recreational marijuana?


Recreational Marijuana

In 2012, Colorado and Washington became the first states to legalize recreational marijuana. However, residents cannot use it whenever they want. Buyers must be 21 years old or older, it cannot be consumed in public, and there are limitations on the amount one can possess or grow.

Some experts advise that, in states where it is legal, recreational marijuana should be treated like recreational alcohol. Workplaces should strive to maintain a drug-free workplace and forbid usage during work hours. Clearly outline your drug policies to candidates and workers; they need to understand that they shouldn’t smoke marijuana on their break or take an edible at lunch.

One question that vexes employers regarding marijuana and drug tests, especially those with offices in multiple states, is whether they can terminate employees for testing positive for marijuana use. Technically, yes. But the laws and legal statues are still murky. Can employers regulate what employees do in their off-time if it isn’t an illegal activity? This is a question with no real answer yet. States like Maine forbid employers from terminating or denying employment for off-duty use. Other states, however, either don’t have laws on the books or outright permit it.

In terms of recreational marijuana and drug tests at the state level, the jury is still out.  Federally speaking, it remains a Schedule I controlled substance and employers are well within their rights to terminate an employee or deny employment based on a positive test for recreational marijuana use.


Medical Marijuana

Once again, there is no simple answer to the question of medical marijuana in the workplace. Federally, marijuana is still considered a Schedule I drug. This means that using it disqualifies people from the protection the Americans with Disabilities Act, even if the medical marijuana was prescribed for a disability. Additionally, the Department of Transportation’s regulations – which most medical review officers follow – also state that the use of medical marijuana is unacceptable.

However, there are some states that protect the rights of patients who use medical marijuana. The laws vary in scope by state. This obviously creates a conflict between federal and state policy. In the states that have passed anti-discrimination laws, courts have ruled that the states have the final say on the matter. So, when it comes to medical marijuana, it is vital to check your state’s position and what protections are in place.

It could be helpful to create an open dialogue with your cardholding employee. Communication about sensitive issues can clear the air and avoid misunderstandings. If an employee discloses to you that they have a prescription for medical marijuana, consider discussing how it could – if at all – impact their work performance.


What’s Ahead

It’s unlikely that these questions and legal gray areas will be cleared up anytime soon. More states are looking into legalizing marijuana for medical and recreational use. There is also a lawsuit in progress that argues medical marijuana use should be protected under the ADA. If it proves successful, it could have dramatic effects on state and federal laws.

For now, employers should keep an eye on their state’s legalization status and become familiar with the laws surrounding it. Clearly define and outline your company’s workplace policy and communicate it with your employees. If any of your employees have a legal prescription for marijuana, consider opening a dialogue surrounding its relevancy. If you have offices in multiple states – say, one where it is legal and one where it isn’t – then it’s a good practice to hold each office to the same standard. When it comes to uncertain issues like marijuana, the best policy is to maintain a clear line of open conversation.


Originally published at Staffing Digest

About Tammy Cohen

Tammy Cohen, an industry pioneer and expert in identity and employment screening, founded InfoMart 30 years ago. Deemed the “Queen of Screen,” she’s been a force behind industry-leading innovations. She was most recently the first-to-market with a fully compliant sanctions search, as well as a suite of identity services that modernizes talent onboarding. Tammy revolutionized the screening industry when she stepped into the field, developing the first client-facing application and a due diligence criminal search that has since become standard for all background screening companies. Cohen has received national awards and honors for her business and civic involvement, including Atlanta Business Chronicle’s Top 25 Women-Owned Firms in Atlanta, Enterprising Women Magazine’s Enterprising Women of the Year award, the YWCA of Northwest Georgia’s Kathryn Woods Racial Justice Award, and a commendation in the 152nd Congressional Record.

About InfoMart

InfoMart has been revolutionizing the global background and identity screening industry for 30 years, providing businesses the information they need to make informed hiring decisions. They develop innovative technology that modernizes talent onboarding, including a first-to-market biometric identity authentication application and a verified sanctions search. The WBENC-certified company is a founding member of the Professional Background Screening Association, and they have achieved PBSA accreditation in recognition of their consistent business practices and commitment to compliance with the FCRA. The company is dedicated to customer service, speed, and accuracy, and it has been recognized for its success, workplace culture, and corporate citizenship with over 45 industry awards. To Get the Whole Story on InfoMart, please visit, follow @InfoMartUSA, or call (770) 984-2727.

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