Campaigns to legalize marijuana at the state and federal levels are blazing nationwide. These efforts are creating a hazy legal landscape for employees, particularly surrounding drug testing in states legalizing or even offering protections for off-the-job employee marijuana use.

A Quest Diagnostics report (link to report) published in March 2022 noted a 50% increase in positive marijuana tests in the general U.S. workforce over the past five years. This higher positivity rate is traceable to efforts to decriminalize and legalize cannabis for medical and/or recreational use. According to the National Conference of State Legislatures (link to report), as of February 2022, the medical use of marijuana was legal in 37 states and the District of Columbia. As of November 2021, D.C. and 14 states, including Minnesota, Arizona, and West Virginia, barred discrimination against medical users. States like Nevada go further, requiring accommodations for off-duty medical use. States including Nevada, New York, and New Jersey also bar discrimination against employees who use the drug recreationally in their off-hours.

This combination—higher individual cannabis usage coupled with diffuse state-wide measures legalizing cannabis and protecting users from workplace discrimination—is a chief concern for employers who are rethinking their workplace marijuana policies. These are three questions about marijuana testing on which employers should concentrate as legalization and protections rise.

1) What Are the Laws in the States Where My Business Operates?

The first and most important consideration for employers is to remain current on the laws of the different jurisdictions in which your business operates. For example, some states with medical marijuana laws may not offer workplace protections while others do. Therefore, a decision not to hire a particular candidate who is medical marijuana patient may be lawful in one state while the same decision may be illegal in another state which provides workplace protections for medical users. Where states offer worker protections for medical use, the employer would likely have to engage in an interactive process with the applicant similar to the ADA to determine what, if anything, can be done to accommodate their medical marijuana use. This interactive process regarding reasonable accommodations must be made on a case-by-case basis. Further, some states like New York bar employers from discriminating against someone for using marijuana, recreational or medical, outside of work. Employers must understand what is lawful in their state concerning drug testing and discipline to avoid legal potholes.

2) Is This a “Safety-Sensitive” Position?

A token buzzword in many workplace marijuana policies is “safety-sensitive.” But what exactly qualifies as a “safety-sensitive” position, and how might such a position impact drug testing in your workplace? The answer is hazy.

For certain jobs, drug-testing requirements for safety-sensitive jobs are easier to determine, such as those falling under the U.S. Department of Transportation’s regulation or those working in the child-care industry. Most safety-sensitive positions, however, are not subject to express regulation or any clear-cut definitions. These include hospital workers, factory workers, and any individual whose job reasonably involves regularly performing hazardous tasks and whose drug use could negatively impact a broader community. An individual in a safety-sensitive position who has a medical marijuana card raises a specialized concern, particularly in states with employee protections where employers must engage in an interactive process, which might include speaking to the employee’s physician to determine whether an accommodation is available or if the worker’s off-duty cannabis use raises too much of safety liability for the company. This complication is only compounded in workplaces with many individuals in safety-sensitive positions.

If an employer has a large population of safety-sensitive positions, rather than conduct mandatory pre-employment drug testing, these employers might consider adopting a “reasonable suspicion” of impairment standard. This is less of a blunt instrument than mandatory pre-employment testing and is similar to observing employees for on-the-job alcohol intoxication. In practice, employers would teach their supervisors and other managers to recognize the objective signs of marijuana intoxication and alert human resources if an employee is exhibiting any strange behavior. If an employee is displaying objective signs of marijuana intoxication, then this “reasonable suspicion” might prompt the employer to investigate further, including mandating a drug test. Objective signs of marijuana impairment, or if an accident occurs, are legitimate reasons to investigate.

3) Is Testing Even Worth It?

These two questions might stonewall even seasoned human resource professionals and employment attorneys, particularly if the employer operates in multiple jurisdictions with varying levels of legalization and protections for cannabis users. Thus, the third question: should my company even be testing for marijuana use? There is a growing mindset among employers that marijuana testing is more trouble than it is worth. The hyper-competitive labor market only compounds this thinking because employees are often thinking about whether there are greener pastures for their careers. Many employers are ditching marijuana testing altogether. Whether this is appropriate will likely turn on the number of safety-sensitive positions in the workplace. Even if an employer bakes a no marijuana testing policy into its culture, it is important to remember liability may still occur if an impaired employee in a safety-sensitive role causes an accident or hurts another individual. Therefore, drug testing may remain appropriate under some circumstances, and employers are encouraged to maintain a “reasonable suspicion” of impairment standard.