Federal law is fairly clear: Marijuana use or possession is still illegal. For some safety-sensitive positions, federal law requires you to fire employees who test positive for marijuana. And employers that hold contracts with the U.S. government must maintain drug-free workplaces.
But the true smoke screen of confusion comes with the jumble of state laws. Currently, 34 states have approved the use of marijuana for some use, including 10 that allow it for “recreational” purposes. And that list is expected to grow.
However, even in states where marijuana is legal, employers typically are free to drug-test employees and forbid them from using pot at work or be high on the job. It’s like alcohol in that regard.
But testing isn’t allowed across the board. Pro-pot legislatures have begun slapping new restrictions on employer testing. Just last month, New York City passed the first law that prohibits employers from conducting pre-hire drug tests for marijuana.
Many employers have already stopped doing pre-hire tests of marijuana for a more practical recruiting reason: A zero-tolerance policy requires firing otherwise good employees for failing drug tests, yet makes it hard to find replacements because so many applicants are testing positive these days.
Other employers are considering positive marijuana tests on a case-by-case basis, rather than zero tolerance. In those cases, they’re engaging in an interactive-like process after a positive test, confirming lawful possession of a medical-use card and/or confirming when the usage is occurring (not at work or immediately before).