Marijuana Compliance for Modern Employers
As marijuana legalization spreads across the country, employers face increasing confusion about how to handle marijuana in the workplace. With a patchwork of state laws, federal regulations that haven’t budged, and complicated questions around testing and impairment, it’s more important than ever to ensure your policies are up to date-and legally compliant.
Whether you’re navigating medical marijuana requests or figuring out how to handle a positive drug test, here are 20 essential things to know:
1. Marijuna is still illegal at the federal level.
Despite its legalization in many states, marijuna remains a Schedule 1 controlled substance under federal law. That means employers-especially those who follow federal rules-must tread carefully.
2. Employers can enforce drug-free workplace policies.
You still have the right to maintain a zero-tolerance policy-even in states where marijuna is legal-if it aligns with your workplace needs and safety requirements.
3. DOT-regulated employees are prohibited from using marijuana.
The Department of Transportation (DOT) prohibits marijuna use for safety-sensitive roles, regardless of state law or medical authorization.
4. DOT drug tests include THC screening.
A positive marijuana test is considered a federal violation for DOT-regulated employees and can disqualify them from performing safety-sensitive functions.
5. State laws are all over the map.
Some states protect off-duty marijuana use, others don’t. Know the rules in every state you operate in to avoid missteps.
6. Medical marijuana users may be protected by state law.
States like Arizona and Illinois have laws protecting registered medical marijuana users from adverse employment actions-as long as they’re not impaired at work.
7. Impairment matters more than positive tests in some states.
In certain states, a positive drug test alone isn’t enough for discipline or termination-especially if the employee is a registered medical user. Actual workplace impairment must be demonstrated.
8. On the job impairment is never protected.
Even in the most cannabis-friendly states, being high at work is still grounds for discipline or termination.
9. Pre-employment testing policies are evolving.
Some states, like Nevada and New York, restrict pre-employment marijuana testing for certain positions. Consider revising your testing policies accordingly.
10. There’s no reliable way to test for real-time impairment.
THC can remain in the body for days or weeks after use. A positive test doesn’t always mean someone is impaired-which compliments enforcement.
11. In many states, you can still fire someone for a positive test.
Unless state law says otherwise, employers are often within their rights to terminate for marijuana use-but consistency and documentation are critical.
12. Consistent policy enforcement is crucial.
To avoid legal trouble, apply your drug policies fairly and equally across your workforce. Inconsistent discipline can open the door to discrimination claims.
13. Safety-sensitive positions deserve special attention.
It’s reasonable (and often necessary) to apply stricter standards for safety-critical roles where marijuana impairment could be dangerous.
14. Disability accommodations may be triggered.
Some employees using medical marijuana may qualify for accommodations under state disability laws-but marijuana use itself is not protected under the federal ADA.
15. Post-incident testing must be justified.
OSHA discourages automatic post-incident testing unless there’s a reasonable basis. Make sure you’re testing in response to real concerns.
16. Reasonable suspicion testing requires training.
Managers and supervisors should be trained to recognize signs of impairment and document those observations carefully.
17. Random drug testing must follow clear procedures.
Random testing should be truly random, non-discriminatory, and compliant with any applicable state laws.
18. Off-duty recreational use is protected in some states.
States like California, Minnesota and New Jersey now prohibit adverse employment actions for lawful, off-duty marijuana use in many cases-unless job performance is affected.
19. Clear, written policies are non-negotiable.
A well-crafted policy should spell out expectations, testing procedures, and consequences-and it must include marijuana.
20. Consult with legal counsel before you terminate.
Especially in states with employment protections, always check with your legal team before disciplining or terminating an employee for marijuana use.
As marijuan laws continue to evolve, employers need to stay proactive. A “one-size-fits-all” drug policy no longer works. The best approach? Stay informed, tailor your policies by jurisdiction and job type, and work with trusted legal counsel to reduce risk while keeping your workplace safe and compliant.
The Employment and Labor attorneys at Wagner, Falconer and Judd are here to support you through it all. Learn more about our subscription services for businesses-here!
