United States: Navigating Marijuana Use In The Workplace
24 November 2020
Kane Russell Coleman Logan
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Leading up to the 2020 general election, thirty-four states (34) had legalized marijuana for medical use and an additional ten (10) states had legalized the drug for recreational use. While the federal government has chosen not to enforce federal law in states that have legalized the drug, marijuana remains an illegal Schedule I drug under the Controlled Substance Act due to its high potential for abuse, and the federal government does not budge on treating marijuana as an illegal drug for purposes of oversight, distribution, federal disability law, etc. Numerous states, however, provided employees with job protection for marijuana use. Thus, marijuana inhabits an “in-between zone” of legality that employers must navigate: it is legal and illegal at the same time.
We have received a number of inquiries regarding whether it is permissible to test (and take adverse actions based on positive results) for the main psychoactive component of marijuana-tetrahydrocannabinol (THC)-in pre-employment drug screens, post-accident drug screens, and in random drug screens; the answer is “it depends.” If the job applicant and/or employee is applying for or works in a safety-sensitive position, was involved in a workplace accident, or will be performing/performs federal contractor work, then yes, employers may test for THC and take adverse actions based on a positive test result. If, however, an applicant is not subject to any one of those conditions, then the answer is a little more complicated. Let us explain.
First, when someone tests positive for THC there is no way of telling whether the person was impaired during the test, 30 minutes before