To date, 24 states and Washington, D.C. have fully legalized recreational marijuana, and another 19 states have legalized medical marijuana or CBD oil use for medicinal purposes. Approximately 74% of Americans live in an area with some sort of access to legal marijuana. These numbers are likely to only increase as lawmakers and regulators push for cannabis reform at the federal level, and with more states expected to vote on marijuana legalization in coming elections.

State marijuana laws and changing rules on drug testing have made it more complicated than ever for signatory contractors to drug test employees. Here are some considerations and tips for employers on drug testing and marijuana laws:

Under current federal law, marijuana is classified as a Schedule 1 drug, meaning the federal government views marijuana as highly addictive and having no medical value. *NOTE – on Aug. 30, the Department of Health and Human Services issued a recommendation to the Drug Enforcement Agency that marijuana be reclassified from a Schedule I to a Schedule III drug.

  • Contractors performing work on federal property, federal buildings, and for federal agencies could be subject to the “Drug Free Workplace Act of 1999.” This Act requires any organization that receives a federal contract of $100,000+ (and any that receives a federal grant): to have a formal drug-free workplace policy statement; a drug-free awareness program; to ensure their employees working on federal contract understand their personal reporting obligations; to notify the federal contracting agency of any covered violation; to take direct action against an employee convicted of a workplace drug violation; and to maintain an ongoing good-faith effort to meet all requirements of the Act throughout the life of the contract.

  • Types of state drug testing laws: mandatory and non-mandatory. While most states do not mandate testing for private employers, there may be state contractor requirements to consider. Some state laws also specify the actual requirements of a policy and the types of testing permitted.
    • All state marijuana laws prohibit impairment during working time, and all state marijuana laws include exceptions for employees governed by federal law.

  • A collective bargaining agreement does not automatically exempt signatory contractors from state drug testing laws. The state law must specifically state the exemption (e.g., in California, contractors are exempted if you’re subject to a CBA or in the building and construction trades). Your policies must be compliant with state law where you’re doing business.

  • Drug testing only detects the presence of THC – it does not determine the level of impairment. Some medical providers are working on a breathalyzer test to detect impairment, but they are not ready for the market yet.

  • Drug testing efforts should be focused on impairment. Remember, all state marijuana laws prohibit impairment during working hours. It doesn’t matter if someone got high at home before coming to work or on the job, if they’re impaired, they’re subject to appropriate disciplinary actions.

  • Recommendation: when dealing with failed drug tests, defer to the scientists at the lab your drug testing is outsourced to. E.g., “I’m sorry that you don’t feel your drug test was accurate, but if the lab tells me it’s a positive test, I have to treat it as a positive test.