Cannabis Reform and the Pre-Employment Drug Test

Every year, there is an almost continuous parade of changes to marijuana laws by state. Medical programs have been established broadly across the nation. A growing number of states have embraced the legalization of adult recreational marijuana use. In some areas, what was once seen as a dangerous drug now exists on a level of social acceptance similar to alcohol. All these changes have impacted how employers use the pre-employment drug test.

What is the current situation, and what changes were there to medical marijuana laws in 2023? For employers, it’s vital to stay up to date on this rapidly changing area of compliance. You may not need to make any policy changes depending on your state. However, you may also need to significantly alter your approach to drug testing for hiring. Let’s explore what you need to know. For this article, we’ll use the words “THC,” “cannabis,” and “marijuana” interchangeably.

First, we need to make an important distinction. The law in most states treats medical and recreational cannabis differently.

Recreational Cannabis vs. Medical Cannabis

California pioneered the first medical cannabis laws back in the 1990s. Since then, many states have adopted laws allowing its use as a medicinal substance. Research continues, but some studies have shown clear benefits for such users. Many states with medical cannabis programs create a specific list of qualifying conditions. These often include serious diseases such as cancer or epilepsy. In practice, most medical marijuana programs qualify many patients.

Recreational marijuana stems from legalization efforts that aim to normalize the substance in line with others, such as alcohol. In states with recreational adult use, the only requirement to buy is usually the appropriate age. Most states require marijuana buyers to be 21 years of age or older. Some states continue to operate recreational and medical programs side by side.

These conflicting approaches create challenges for employers. They also lead to a split in the law. Employers may worry about recreational users arriving high at work. They might have the same concerns about medical users—but can you restrict someone’s use of a legally-prescribed medication? Understanding today’s marijuana drug testing laws demands a clear insight into legalization styles.

What does the law say right now, and what’s new?

The Current State of the Law About Medical Cannabis

As of the beginning of 2024, 39 states have laws on the books for medical cannabis usage. Washington, D.C., also has medical cannabis laws. Among this majority group of the nation, laws about pre-employment testing differ dramatically. Fewer states protect medical usage than one might expect. Indeed, twelve states do not require employers to accommodate it at all. Those states include:

• Alabama
• Alaska
• Colorado
• Florida
• Georgia
• Kentucky
• Michigan
• Mississippi
• Ohio
• Oregon
• South Dakota
• West Virginia

In these states, employers can continue to test for THC. Positive tests can be the basis for dismissing a conditional job offer. Employers don’t have to accommodate medical users—but in other states, they do. Twenty-one states and D.C. mandate some form of “reasonable accommodation.” Those states are:

• Arizona
• Arkansas
• California
• Connecticut
• Delaware
• Illinois
• Maine
• Massachusetts
• Minnesota
• Missouri
• Montana
• Nevada
• New Hampshire
• New Jersey
• New Mexico
• New York
• Oklahoma
• Pennsylvania
• Rhode Island
• Virginia
• Washington

In these states, you may not disqualify candidates for marijuana use if they have a valid card. On-duty use is still restricted, but some states require permitting off-duty use. Surprisingly, some states haven’t given employers any direction whatsoever. Despite medical marijuana legalization, Louisiana, Maryland, North Dakota, Utah, Vermont, and Hawaii don’t give specific guidance.

There are exceptions to these laws in every state. Safety-related positions are usually exempt. Likewise, any job regulated by the Department of Transportation still requires THC testing.

Only one state, Kentucky, passed new marijuana laws in 2024. Kentucky’s law also does not accommodate users in an employment setting. Companies can even stipulate to vendors that they should not send employees who use medical marijuana. Kentucky businesses should review their policies in this area.

What States Say About Recreational Use

To date, 24 states and Washington, D.C., have legal adult-use cannabis. Ohio became the latest state to pass a recreational law in late 2023. With nearly half the states now enjoying legal marijuana, employers are more likely to encounter positive drug tests. Accommodating medical users is one thing, but what about recreational users?

Sixteen states offer no employment protections. In states such as Virginia and Oregon, employers can still test for THC. They can disqualify candidates who use recreational marijuana, even if it’s off-duty. This view is currently the majority among states with adult-use programs. California, Washington state, Washington, D.C., and Minnesota make allowances for off-duty use. Their laws reflect this difference.

Employers can continue using drug tests in Montana, Rhode Island, Montana, and D.C. However, they can’t disqualify candidates for a THC positive. California and Washington state go even further. THC positives can’t disqualify candidates, and neither can non-psychoactive “metabolites,” such as CBD or THC derivatives. Of the many pre-employment drug testing laws by state, only Minnesota and New York currently have a blanket ban on THC testing.

Staying Compliant With Changing Laws

With such a complex landscape, it can initially seem overwhelming to navigate. However, the proper process can make a difference. First, review the current state of the law in your jurisdiction. Review the rules for medical and recreational cannabis depending on what’s legal where you operate. Remember that you’re more likely to accommodate medical marijuana use than recreational users.

Develop written policies informed by the law on both subjects. Align these policies with your risk tolerance and level of acceptance for cannabis use off-duty. Be clear that you explicitly prohibit on-duty and/or on-premises usage of any cannabis product.

Work with your drug testing provider to adjust the types of drug panels you order. For example, New York employers will need tests that exclude THC results from final reports. California employers must work with labs that know how to exclude non-psychoactive positive results.

Prepare for Additional Future Changes

While 2023 brought a wave of new legislation, there’s no telling what the years ahead have in store. Some states have yet to make any changes to marijuana law. More medical states could soon transition to recreational states. Those with legal cannabis but no restrictions on how employers consider that usage might adopt new rules. That says nothing of the sea change that will occur if the federal government re-schedules marijuana.

Ultimately, the pre-employment drug test is still a valuable tool for employers. Today’s panels detect other harmful substances one should screen for, such as heroin or other opiates. The changing attitudes about marijuana simply require a recalibration of company policies. It is vital to understand precisely what you can and cannot do when hiring in states with legal cannabis. Review the latest updates in your jurisdiction, make policy changes as needed, and prepare for the future of hiring.