Ten states and Washington, D.C., have legalized recreational marijuana use with more states, including Illinois, New Jersey and New York, expected to follow suit. Shifts in state law have left several employers wondering how to address company drug use policies as well as drug testing procedures.
State Marijuana Laws*
States that permit recreational and medical marijuana use (dark green): Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, Washington, Washington, D.C.
States that permit medical use only (light green): Arizona, Arkansas, Connecticut, Delaware, Florida, Illinois, Maryland, Michigan, Minnesota, Montana, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, West Virginia (Alabama and Mississippi have additional restrictions; Louisiana allows oils and topical applications)
States expected to legalize marijuana in 2019 based on support by the public, the governor and legislators (black): Connecticut, Illinois, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island and Vermont
Congress mandated drug testing for workers in trucking, rail and other industries following a deadly train crash in Maryland in 1987, and several employers conduct drug testing for new hires as a best practice even when it isn’t legally required. The Society for Human Resource Management reported that more than half of employers conduct drug testing on job applicants. Today, applicants in states with legalized recreational marijuana use are failing drug tests at higher rates than the national average, Quest Diagnostics reported.
What’s more, drug use by the U.S. workforce increased each year between 2015–2017 in several industry sectors, according to the Quest Diagnostics study. "Our analysis suggests that employers can't assume that workforce drug use isn't an issue in their industry. In fact, drug test positivity in the majority of industry sectors analyzed is growing," said Barry Sample, Ph.D., senior director, science and technology, Quest Diagnostics Employer Solutions. “The highest rates were in consumer-facing industries, including jobs in retail and health care and social assistance.”
Although decriminalization of marijuana is increasing, none of the medical or recreational marijuana laws require employers to allow employees to use, possess or be impaired by marijuana during work hours or in the workplace, even if for medicinal purposes. “It is akin to a no-alcohol policy at work. If you can’t be drunk at work, you can’t be high at work,” said Sarah Turner, a partner at Gordon & Rees.
Under federal law, the drug remains illegal and is classified as a Schedule 1 drug, which is the same classification as heroin and LSD. “For the most part, employers can still rely on marijuana being illegal under federal law when shaping their policies and procedures around marijuana,” said Robin Taylor Symons, Esq., co-managing partner of Gordon & Rees...
*As of May 2019.