For decades, cannabis (and cannabis consumers) have faced unnecessary scrutiny resulting in protracted legal battles, monetary losses, domestic conflicts, and unemployment for thousands of Americans. Although the scope of cannabis’s legal status is evolving to match the views of the general public, some employers are slow to join the game.
However, just because cannabis is legal either medically or recreationally in 30 US states plus the District of Columbia (and federally legal for medical purposes throughout all of Canada), doesn’t mean anyone can toke without consequences. Employers have a duty to maintain a safe work environment and if cannabis use might jeopardize that, employers maintain the right to take appropriate action to prevent it. This could mean termination, refusal to hire, or other disciplinary actions as outlined by a company’s established drug policy.
But a failed drug test doesn’t necessarily equate to unemployment. Here’s what you should know about employee drug testing and screening policies in your state.
US Vs. Canadian Workplace Drug Policy
The Canadian government was the first to legalize the medical use of cannabis nationwide when it ruled prohibition unconstitutional in 2001. As such, discrimination against medical marijuana patients is also seen as unconstitutional and thereby protected by Canadian law.
However, Canadian law does not permit the use of cannabis or allow cannabis intoxication while at work, because it could jeopardize the safety of the individual and their fellow employees. It is still up to the employer to maintain a safe work environment and employees who behave in a manner contradictory to company safety policy can be disciplined in accordance with Canadian law.
Basically, if you smoke weed in Canada, don’t come to work baked and you should be fine.
Having said that, cannabis has clear medical value that some employees cannot do without for extended periods of time. It’s the employer’s duty to ensure appropriate accommodations be made for medical cannabis consumers in the same way they would accommodate any other medical necessity. If, for example, a medical patient has been ordered by their doctor to ingest cannabis throughout the workday to maintain healthy pain or anxiety levels, the employer must allow the employee to medicate as needed, provided it doesn’t pose a health or safety risk and does not impede in the nation’s smoke-free workplace laws.
If a position of employment is particularly dangerous or otherwise unsafe to perform while intoxicated, it is the duty of both the employee and the employer to find a suitable compromise. It is not OK, however, for an employee to blatantly disallow employment due to a person’s medical marijuana use. Drug testing in this case is therefore unnecessary. The best policy in the Canadian workplace is to maintain an open dialogue between employee and employer to ensure everyone is both safe and sufficiently medicated.
US drug policy is much more complex, since cannabis is still federally illegal thanks to its Schedule I classification by the Drug Enforcement Administration, which deems the plant a substance with “no currently accepted medical use and a high potential for abuse.”
Generally, it is legal for employers to administer drug tests as a condition of employment. Though the laws vary by state, there are some basic drug policy standards all companies must uphold. For example, drug policies must be established and clearly explained to employees or potential employees. Cannabis cannot be retroactively added to a drug policy to enforce disciplinary action, and failure to do so could result in costly discrimination lawsuits.
State-By-State Cannabis Laws
Each US state is governed by its own cannabis law. Check the list below to see what the workplace drug policy is in your state.
Alabama
Alabama is a CBD-only state and only for a sliver of approved medical patients as part of a clinical study. It is legal to conduct random drug tests either prior to employment or during employment to maintain a safe workplace, after an on-the-job injury, or as part of a rehabilitation program. Failed drug tests can be contested within five days.
For the drug policy to remain compliant, a written copy must be distributed to employees within at least 60 days and must remain posted in the workplace.
Alaska
Alaska allows both medical and recreational access to cannabis. However, it is still legal for employers to administer drug tests, either as a prerequisite to hire or as a standard to maintain employment. Failed drug tests or refusal to take a test can result in either expulsion or other disciplinary measures as determined by the employer.
Compliance requires that employers provide 30 days written notice of drug policy. Those who work in public transport are randomly tested under a different set of provisions.
Arizona
Arizona is a medical marijuana state that allows drug testing within the workplace if it is of necessity. Employees or potential employees must be informed in writing of a company’s drug policy, and failure or refusal to take the test is grounds for termination or suspension, depending on company policy.
Arkansas
Arkansas is a medical marijuana state. Though opting into a drug-free workplace is voluntary, the state government incentivizes the program by offering a credit on employment insurance packages to those who maintain a drug-free policy. Those who have an established workplace drug policy can randomly test employees or potential employees only after a job offer has been made.
Arkansas workplace drug policy permits random drug and alcohol screenings for those in safety-sensitive positions, if there is reasonable suspicion of intoxication on the job, or at the employer’s discretion.
California
California is decidedly 420-friendly, with both medical and recreational laws in place. In terms of workplace drug policy, California is perhaps one of the most progressive in the nation, requiring only state-mandated agencies test for drugs.
All fees associated with drug screenings are solely the responsibility of the employer, which is mandatory for anyone working in the transportation industry. Drug tests must be conducted by licensed physicians at certified testing facilities; on-site testing is not allowed in California.
Public employers and private sector jobs are required to “reasonably accommodate” employees who request drug rehabilitation programs, provided that no undue hardship is imposed on the employer by doing so.
Failure to pass a drug screen in California could make an employee ineligible for workers’ compensation in the case of work-related injury.
Colorado
Colorado is well-known for its recreational market, but employers can still drug test in the state. There is no state-mandated drug policy in place; instead, it is governed through laws like the Americans with Disabilities Act and other state and federal provisions.
To test either employees or applicants, employers in Colorado must inform them in writing of the test and its requirements, test only if there is strong reasonable suspicion, and provide written proof of a failed test. Employees who test positive after a workplace injury could lose some or all of their benefits.
Connecticut
In Connecticut, cannabis is legal for medical purposes and otherwise decriminalized. Employers may test applicants only in licensed drug testing facilities, provided they give prior written notice. Past employees may not be retested for 12 months as a condition of employment.
Employees may be tested if there is reasonable suspicion that they are intoxicated at work, while random testing is allowed for safety-sensitive jobs. Failure to pass a drug screen following a work-related injury could result in a loss of benefits.
Delaware
Cannabis is only legal in Delaware for medical use and can result in suspension, expulsion, or denial of employment upon a failed drug test. Employers face limited restrictions regarding drug testing policy, aside from having an established policy in place.
Certain employment sectors in the state require drug testing, including home healthcare practitioners, nursing home employees, school bus drivers, and those who work for the Department of Correction. Employees in these fields who fail a drug screen may be subject to fines imposed by the state.
Failure to pass a drug test can also result in a loss of employee benefits, such as workers’ compensation.
Florida
In the medical-only state of Florida, it is legal to administer drug tests as a condition of employment. Sixty days’ written notice is required prior to administration, and drug policy rules and regulations must remain posted in an easily accessible location.
Though all testing must follow federal regulations, the voluntary program offers employees a 5 percent discount on workers’ compensation benefits.
In the event of a failed drug test, employers are required to compensate employees for their lost time and may also request a secondary confirmation test at the employer’s expense. Positive tests can result in job loss or suspension, unless the employee agrees to enter a drug rehabilitation program. After rehabilitation is complete, the employer must reinstate the employee’s job title and pay their wage.
Georgia
Georgia is a limited-use medical marijuana state that requires drug testing for those working in government, public schools, or private sector jobs. Tests may be routine or random based on reasonable suspicion, and drug policies must be distributed and posted prior to testing.
Testing may be done on-site or at licensed facilities and conducted only by those certified to collect specimen. Failure to pass a drug test can result in disciplinary action including suspension, expulsion or drug rehabilitation. For those who complete drug rehabilitation programs successfully, retesting is not necessary to regain employment.
Hawaii
Hawaii is a medical-only state that allows for testing of all employees at employer discretion. Tests can be conducted on-site, but positive tests require the employee to report to a state-licensed testing facility within five hours of a failed test to confirm its status.
A failed test could result in termination of employment or reduced benefits, though the mere presence of cannabis in one’s system is not sufficient for a positive test. There are cutoff values for alcohol, opioids and cannabis, and if the employee falls below the cutoff point, the test will be rendered negative.
Fees associated with the test are the responsibility of the employer.
Idaho
Cannabis remains illegal in Idaho. As such, it is legal for employers to drug test applicants and employees as a condition of employment.
To remain compliant with the state, drug policy must be established and shared with all employees in writing and remain posted in employee work areas.
Positive test results must be provided to the employee and a retest administered per the employee’s request. Failed tests can result in up to 50 percent loss of worker benefits in the case of work-related injury.
It is also illegal to take legal action against employers in the state of Idaho for any disciplinary action taken as a result of a failed drug test.
Illinois
Illinois has decriminalized the use of cannabis, which means that being caught with weed in your possession will not result in criminal prosecution. However, cannabis consumption can still result in employment battles because of the states active involvement in the Drug-Free Workplace Act, which offers grants to any company that participates.
Employers can test any employee regardless of sector, though drug screening is a mandatory prerequisite for any government facility or those who receive federal money.
As with most other states, compliance requires that employees inform employers/applicants of their drug policy in writing and maintain drug policy visibility in the workplace. Tests must be administered in a way that does not violate the person’s privacy, reputation or dignity.
Indiana
Indiana is a CBD state for registered patients who have epilepsy only. Drug testing in Indiana is required for any safety-sensitive jobs and those in childcare positions, and is permitted for all types of employment, provided the employees are aware of the company’s drug policy.
Though law does not require school bus drivers to pass drug screening for employment, possession or intoxication by any controlled substance within six hours of a shift may result in a Class A Misdemeanor charge.
Iowa
Iowa is a limited medical-only state, while recreational consumption remains a felony. Pre-employment drug screening is allowed in the state, provided the applicant is given oral warning and the testing is disclosed on job advertisements and applications.
Workplace drug testing is permitted when there is reasonable suspicion of drug use and/or if the employee is given at least 30 days’ notice. Random tests are also permitted, as long as they are done on random employees using something like a number generator to avoid discrimination. Failure to take or pass a drug test is grounds for suspension or removal.
Kansas
Cannabis remains completely illegal in Kansas and identifying its consumption in the workplace can result in failure to acquire or maintain a job. Pre-employment drug screening is required for safety-sensitive jobs or for those workers in government positions, and permitted for all other jobs, provided applicants and employees understand beforehand a company’s drug policy.
Employees can deny drug testing and employers can use that as grounds for termination only if there is probable cause that the individual is or has been under the influence at work. However, because the government does not limit drug testing, employees who believe they’ve been unfairly targeted should base their discrimination claim on other provisions like age, gender, ethnicity or disability, or argue that their right to privacy has been compromised.
Kentucky
Cannabis is illegal in Kentucky, and offenses can result in misdemeanor charges. Employers in the state are permitted to drug test any employee or potential employee in accordance with state law. Tests can be conducted randomly, as a prerequisite to employment, following an accident or injury, or if there is reasonable suspicion that an employee is intoxicated at work.
Though employers can discipline employees who test negative, employees can challenge the results due to discrimination, definition or privacy violations.
Louisiana
In the medical-only state of Louisiana, it is permissible to test both employees and applicants for drugs, provided the drug policy is established, understood, and posted publicly. However, it is illegal for an employer to fire an employee for a failed test if it is a first-time offense. Rehabilitation programs are not required but are encouraged for failed drug tests.
Student employees, interns, and those working in safety-sensitive fields are required to undergo random drug screenings, and failed tests can result in suspension until further notice. Those who work in transportation, especially those who work with children, face additional scrutiny in terms of drug use and may be banned from their place of work until a government official gives the go-ahead to return after a failed test.
Maine
Maine is a recreational state that allows for the testing of applicants and employees, especially those in safety-sensitive positions. Businesses with more than 20 employees are required to have a workers assistance program in place, which must be approved by the Office of Substance Abuse and Mental Health Services. Random screenings are only allowed for business who have more than 50 full-time employees, and testing must be done by a committee.
Declining to take a test or failure to pass is grounds for disciplinary action including suspension, expulsion, rehabilitation or a loss of benefits. Employers carry the sole financial burden of drug screens.
Maryland
While recreational cannabis remains illegal in the state, Maryland has medical marijuana laws in place that allow for pre-employment drug screening as a condition of employment, which can be either in the form of either a urinalysis or a hair sample test. Employees, however, may only be tested if there is a legitimate business reason for the screening, such as safety-sensitive positions.
In the event of a positive test, the employer has 30 days to provide the employee a copy of the test results, a written copy of the company’s drug policy, and any intended actions to be taken by the employer.
Massachusetts
Massachusetts allows for both the medical and recreational use of cannabis. Unlike most other states, Massachusetts has strict guidelines for drug and alcohol testing in the state. For example, though drug screening can be conducted prior to employment (and only after an offer has been made), the state does not allow random drug screens for anyone other than those employed in safety-sensitive positions.
Drug testing is also allowed post-accident or if there is reasonable suspicion of intoxication, and commercial drivers may be required to complete a drug screen at the request of law enforcement. Employee benefits may be withdrawn should a test come back positive. All fees accrued will be at the expense of the employer.
Michigan
The medical-only state of Michigan has no specific drug screening guidelines in place outside of the basic requirements that tests must not impede on an individual’s privacy, dignity or reputation. Employers may test both applicants and employees in accordance with the company’s established drug-free workplace policy.
Minnesota
Minnesota has legalized medical marijuana and decriminalized it otherwise. The state authorizes the testing of employees and applicants as a condition of employment under the following circumstances: suspicion of substance abuse; as part of an employee assistance program; following an on-the-job accident; or as part of an annual physical exam, provided the employee receives at least two weeks’ written notice.
Though employees maintain the right to refuse testing, employers also maintain the right to seek disciplinary action if they do refuse testing. However, refusal to take a drug test does not necessarily equate to a loss of unemployment.
Random drug testing is required for those holding safety-sensitive positions and is allowed for professional athletes at the employer’s discretion. Should an initial test come back positive, it is required by law that the employee be offered a rehabilitation program. Failure to complete rehabilitation or failure after completing the program may result in a loss of employment and unemployment benefits.
Mississippi
Mississippi only allows the medical use of CBD products. The state permits drug screening for applicants and employees, provided there is appropriate written notice and the signature of both employee and employer. (Note: Refusal to sign the document does not prevent drug screening, but the request to sign the document is required no less.) Positive tests may result in job termination, provided that the test was confirmed and the employee is notified within five days.
Employers are not liable for any adverse consequences resulting from a failed test, but are not protected from discrimination lawsuits should the employee feel they were unfairly treated.
Missouri
The CBD-only state of Missouri is very lax on its drug-testing guidelines. However, this does not mean employers are free to do as they wish; a company’s drug policy must be in accordance with federal law. Employers maintain the ability to sue for violations of privacy and for discrimination.
Though the initial drug test is at the expense of the employer, employees can request a secondary test at their own expense. Failure to pass or denial to take a test may result in a loss of job and workplace benefits.
Montana
Montana’s legal medical marijuana does not protect its users from job loss in the event of a positive drug test. Employees may screen employers if there is reasonable suspicion of impairment, following an accident resulting in $1,500 or more in damage, or as a condition of employment for those who work in transportation, hazardous jobs, public safety or fiduciary positions.
All testing is at the employer’s expense, including time spent taking the test. A confirmation test may be conducted at the employee’s request; a failed confirmation test is to be paid for by the employee.
Though job loss may result from a failed test following an on-site accident, if the employer was aware of the intoxication and failed to stop the accident, an ineligibility of benefits does not apply.
Nebraska
Cannabis is still illegal in Nebraska. As such, there are few restrictions on employee/pre-employment drug testing. Employees are free to test and discharge employees at will, provided the employer pays the associated fees. Confirmation tests are not required unless disciplinary action is to follow.
Nevada
The recreational state of Nevada works hard to protect its citizens. The state allows for drug testing only for those directly involved with public safety. Testing can be for either applicants or employees and must result in a counseling referral following a first offense. Subsequent offenses are grounds for termination and loss of benefits. State employees may also be subjected to drug screens, especially if there is reasonable suspicion of intoxication or following an accident that caused excessive damage or harm to others.
New Hampshire
The medical state of New Hampshire does not have any regulations in place regarding employee drug testing. Provided they comply with federal law, New Hampshire employers may screen employees and applicants for drugs and seek disciplinary action as needed. Though the state protects medical patients from employer intervention in the case of both prescription drugs and alcohol, drug dependency is not protected. In other words, employees can lose their jobs for cannabis consumption, but not for doctor-prescribed medications or alcohol.
New Jersey
Private sector jobs are not protected in the medical state of New Jersey. As such, employers may test applicants and employees for drugs, provided the testing complies with federal law. Disciplinary action may be taken at the employer’s discretion, and all fees associated with the screening and corresponding medical exams are the responsibility of the employer.
The New Jersey State Board of Education may require employees and applicants to undergo drug screening, as well as those who work in public transportation. Workers in safety-sensitive positions are also subject to random screenings, screenings following an accident, or upon reasonable suspicion of intoxication.
New Mexico
Though New Mexico is a medical state, it does not protect from disciplinary action for those who use medical marijuana. Employers working in transportation are required by law to screen employees and applicants for drugs and may do so randomly or following an injury or accident. If an accident is a direct result of intoxication, benefits may be revoked; however, if intoxication was not the sole cause of the accident, workers’ compensation may be dropped 10 percent.
New York
Cannabis is legal for medical purposes in the Big Apple and decriminalized otherwise. Though drug and alcohol addiction are considered diseases in the state, illicit drug use is not and could be the basis for termination. However, those who are in recovery are protected and must be provided adequate accommodations to see their recovery through, such as a leave of absence or alternate working hours during which to complete rehabilitation.
Drug screening is mandatory for people working in public transportation, school bus drivers, and those within the athletic department, while it’s optional for all others. Tests are to be conducted at drug-testing laboratories at the employer’s expense.
North Carolina
Cannabis is completely illegal in the state of North Carolina. Drug testing is not restricted at the state level and instead relies solely on federal drug testing standards. Though testing is allowed in the state, it is not required.
Should an employer choose to screen employees for drugs, it must happen at the employer’s expense and must take place on-site using an FDA-approved, single-use testing kit for pre-employment only. Current employees must have their tests conducted at an approved off-site lab.
Though employees may be allowed to transport a sample themselves, tampering with the sample is a felony and can result in harsher punishment than simple employment rejection.
North Dakota
Drug testing in the medical state of North Dakota is permitted but not mandatory, except for those employed in safety-sensitive positions like law enforcement, medicine, education and public transportation. In the event of workplace injury or accident, it is the employer’s duty to prove inebriation at the time of the accident, which is done through subsequent or randomized drug testing.
Though there are no specific drug-testing policies in place, some provisions do apply. For example, drug screening must be done at the employer’s expense and must see to it that an employee’s privacy remains protected. Discrimination laws protect those tested on the basis of gender, ethnicity, age, and so on.
Ohio
Ohio’s medical status does not protect employees/applicants from drug screening and subsequent disciplinary action. In fact, companies can earn grants for establishing a drug policy that tests at least 15 percent of its employees annually.
Drug testing is also required following a work-related accident that could result in a loss of benefits. However, the test must be conducted within eight hours of the injury for alcohol-related accidents, and within 32 hours of the injury for other controlled substances.
State workers are also required to stay drug free. Noncompliance is considered a breach of contract and will result in appropriate disciplinary action.
Oklahoma
Oklahoma allows for a narrow margin of medical use as part of clinical trials of CBD oil for patients with qualifying conditions. THC is illegal in the state and positive tests can result in denial or termination of employment and/or loss of benefits. Scheduled and random drug testing is required for anyone authorized to carry firearms, or who directly influences public health and safety.
Private sector employers may test applicants and employees with written notice (at least 30 days for employees) and a clear understanding of the disciplinary action to be taken upon a failed test. Testing may be performed following an accident, as part of a rehabilitation program, upon reasonable suspicion of intoxication, or as part of a fit-for-duty medical exam.
Oregon
Oregon has legalized the use of cannabis for adults aged 21 and older. In the state, the only permissible reasons to administer drug tests are if there is reasonable suspicion the employee or applicant is intoxicated, or following a workplace accident.
Drug screens can be conducted at licensed laboratories in compliance with the state’s clinical and environmental laboratory statutes. On-site testing is also permitted for FDA-approved testing kits, provided the location itself is registered as a Substance Abuse on-site facility, which requires a $50 annual fee. All expenses are the responsibility of the employer.
Pennsylvania
The medical-use state of Pennsylvania does not prohibit any form of drug testing, including urine or blood samples or hair follicle tests. There is also no law regulating which substances can be tested for in the state. Provided the employer follows an established drug policy, they are free to test applicants and employees randomly, after an accident, or if there is reasonable suspicion of intoxication. Employers can also terminate employees, due to the state’s at-will employment policy. However, if there is a violation of public policy (discrimination or privacy violations, for example), the employer could be liable.
Public transportation positions require drug testing in accordance with the US Department of Transportation. A failed test is grounds for termination and an ineligibility for unemployment.
Rhode Island
Rhode Island is a medical state that allows for pre-employment drug screening, or as part of an ongoing, drug-free workplace policy. Though random testing is prohibited in the state, if there is reasonable suspicion of intoxication, a test may be conducted at the request of the employer.
Though there are no regulations regarding initial testing, follow-up tests must be done through a federally certified testing facility. All fees associated with the tests are the responsibility of the employer.
In some cases, drug testing is mandatory, specifically for law enforcement, firefighters, and other municipal agencies.
Initial positive tests should not result in termination, however. Instead, employees must first be referred to a substance abuse counselor. If, following counseling, a follow-up test comes back positive, the employer may resort to termination.
South Carolina
The CBD-only state of South Carolina allows the testing of applicants and employees, and reserves the right to deny employment in the event of a positive test as it constitutes misconduct in the workplace. A positive test requires a follow-up test to be conducted within 30 minutes of the first test.
Interestingly, South Carolina’s Drug Dealer Liability Act grants the right of employers to seek retribution for economic and noneconomic damages from the employee’s dealer. Employers earn credit on their workers’ compensation insurance by opting into a drug-free workplace policy.
South Dakota
South Dakota allows employers to drug test applicants and employees in safety-sensitive positions by specific government agencies when there is reasonable suspicion of intoxication. Private sector employees/applicants can be tested on-site and all expenses must be paid by the employer.
Cannabis is illegal in the state and has drug dealer liability laws in place, allowing employers to sue for damage caused to the company by the drug transaction. Positive test results are considered willful misconduct and can result in termination or a loss of benefits. Testing is mandatory following a work-related injury.
Tennessee
Tennessee allows for the limited medical use of non-psychoactive CBD only. Employers may test applicants and employees for drugs under certain circumstances (as a condition for hire, following workplace accident, upon reasonable suspicion of intoxication, or as part of a routine checkup for those in safety-sensitive positions) but cannot discipline an individual without confirmation from authorized personnel.
In the event of a positive test result, an employee has the right to explain themselves before disciplinary action is taken.
Texas
Cannabis is illegal in Texas and employers reserve the right to decline employment to anyone testing positive for illegal substances. Employers who wish to maintain a drug-free workplace must do so in accordance with the rule on Required Elements of a Drug Abuse Policy.
Motor carriers must maintain a drug-free workplace and are therefore required to test their commercial drivers.
Utah
Utah is a limited-use CBD oil-only state that protects employers who want to screen employers and applicants for drugs, provided that management and employers are periodically tested themselves. Drug policy must be established prior to testing, which may take place under suspicion of impairment; following workplace accident or theft; or as an ongoing effort to maintain safety, security and productivity.
Drug testing is mandatory for those operating storage and transportation facilities, particularly those who deal with high-level radioactive waste. In all cases, the employer must pay all fees associated with the drug tests.
Vermont
Vermont is currently working on the framework to establish a recreational cannabis market, which comes into effect July 1. The state allows drug testing of applicants, provided there is advanced written notice and a job offer made. A positive test result is grounds for denial of employment.
Employers may only test employees, however, if there is reasonable suspicion of intoxication or as part of an employee assistance program. Random drug testing is prohibited in Vermont.
Testing must be done in a lab and positive tests must show a chain of custody confirming the sample is the original. Employees have the right to a secondary test from an independent laboratory at their own expense — however, initial drug screenings are at the expense of the employer.
Injury caused by illegal substances is grounds for the denial of workers’ compensation benefits. The employer has the burden of proving whether or not this is the case.
Virginia
Virginia is a CBD-only state for people with severe epilepsy. Employers who wish to implement a drug-free workplace must do so according to the Virginia Drug-Free Workplace Act and may test applicants (if a job offer has been made and the prospective employee has given consent) and employees if there is reasonable suspicion of intoxication or following a workplace accident. Workplace intoxication is considered misconduct and grounds for termination, rendering the worker ineligible for workers’ compensation.
All fees associated with drug screenings are the responsibility of the employer. Failure of the employer to pay could result in a $100 fine.
Washington
Washington is another recreational state that allows the testing of both applicants and employees in accordance with the respective company’s established drug policy. Policy must be posted in common work areas and distributed to employees at the time of hire. Testing is mandatory for commercial drivers.
Employee drug testing is permissible if there is suspicion of intoxication, following an accident, as part of an employee assistance program, or at random if there is at least 60 days’ notice. Tests must be conducted in licensed facilities only. A positive test must be given to the employee showing the chain of custody, and the employee must be given the opportunity to explain. Positive tests are grounds for termination.
Washington, District of Columbia
Despite DC’s liberal “grow and share” cannabis legislation, the Capitol does not currently address drug testing in private employment, which means such testing is not mandatory, nor is it unrestricted — unless it can be proven that workplace drug testing violates anti-discrimination laws based on disability, age, race or gender.
West Virginia
The illegal state of West Virginia does not have any established drug policy regulations. As such, employers who wish to establish a drug policy may do so based on federal guidelines.
Circumstances that justify employee drug screening could be pre-employment, reasonable suspicion, post-accident, or for those in safety-sensitive positions. Since 1990, the state has ruled it illegal to randomly test private sector employees. Public sector employers may be tested randomly if they had a negative test within the last 12 months and/or they were caught tampering with the specimen.
Intoxication on the job is grounds for termination.
Wisconsin
Cannabis is illegal in Wisconsin. While a bill has been passed to allow for the medical use of CBD oil, there currently exists no legal pathway to acquiring the product, as the bill states CBD oil must have FDA approval. The state has no established drug policy aside from those put in place by the federal government. Wisconsin does, however, require public contractors to submit drug screenings, while private sector drug testing is at the discretion of the employer in accordance with the company’s established drug policy. Details regarding company drug policy should be posted and employees/applicants notified of impending drug tests.
Positive drug tests or refusal to submit to one is grounds for job termination. Intoxication caused by workplace injury may result in a reduction in workers’ compensation benefits of up to 15 percent, or a $15,000 maximum fine from accidents resulting from intoxication.
Wyoming
In the CBD-only state of Wyoming (which allows for cannabis to treat seizures only and does not provide in-state access), drug testing is mandatory for those holding state or safety-sensitive positions. Private sector employment has no official laws governing drug testing in the state, but basic antidiscrimination and privacy protection should remain a top priority.
A company’s drug policy should be understood and posted in common work areas. Random drug testing is reserved for those in safety-sensitive positions, but reasonable suspicion or post-accident tests are permissible always, provided they follow the company’s established policy.
Cannabis’s evolving legal status has yet to overflow onto standard workplace policies. The bottom line is this: Just because cannabis may be legal in your state, doesn’t mean it’s legal in your workplace. Check with your local government to learn more about cannabis in the workplace and to keep yourself protected.
