What the legalization of marijuana means for pre-employment drug testing

Last updated: July 23, 2024
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Lara Grant
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What the legalization of marijuana means for pre-employment drug testing
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New York legalized marijuana use in March 2021, joining the majority of states that allow either medical or recreational use of cannabis.

States like New Mexico and Virginia are set to follow suit later this year. So, what does this mean for pre-employment marijuana drug testing that many companies require?

Read below to find out what laws are in place currently, what rights both companies and individuals have, and how medical marijuana use may differ.

What are the federal and state laws for marijuana use?

Under federal law, use, sale, and possession of cannabis over 0.3% THC are still illegal, though President Biden has stated that he supports the decriminalization of marijuana.

In February 2021, the U.S. Office of Personnel Management (OPM) released a memo reinforcing that marijuana is still illegal and federal employees should refrain from use, however, it should not be the only factor for agencies determining the suitability for employment.

Meanwhile, there are 16 states plus the District of Columbia that have made recreational marijuana use legal for adults 21 or older, and an additional 33 states permit medical use of marijuana.

Three states have also passed or voted for legalization of marijuana, but the laws have not taken effect yet. These include:

  • Virginia
  • New Mexico
  • South Dakota

The 16 states where it’s currently legal for recreational use include Alaska, Arizona, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, New York, Oregon, South Dakota, Vermont, and Washington.

Can companies still require pre-employment drug testing?

In most places, yes. Even though marijuana may be legal in your state, companies can still have their own rules banning its use for employees.

Laws do vary by state, with some pre-employment drug screening not restricted, and others requiring advance notice to an applicant and only after an offer of employment has been made. Very rarely will job postings mention necessary drug testing, however, so you might not know it's necessary until far into the interview process.

There are a few locations that have passed laws limiting pre-employment drug testing, however. As of May 10, 2020, employers in New York City cannot require pre-employment drug testing for most jobs.

Exceptions are for any job where safety or security is an issue or it’s tied to a federal or state contract or grant; examples include a police officer, child caretaker, train dispatcher, and anyone who operates heavy machinery or works with utility lines.

A similar law in Nevada took effect January 1, 2020, and one in Philadelphia was passed by the city council and is expected to go into effect on January 1, 2022. A bill was introduced to do the same in California, but it has not been passed yet.

Hear directly from the Jobcase community:

Should there be a ban on pre-employment drug testing for marijuana?

Other ways employers screen applicants 

What if you have a medical marijuana card?

In most places, employers can still refuse to hire someone due to medical marijuana, even in a state where it’s legal.

While the law protects individuals with medical marijuana cards from being prosecuting for use and possession under state law, there aren’t as many protections for employees. Because cannabis is still illegal under federal law, it does not fall under the protection of the Americans with Disabilities Act (ADA).

New York and Nevada do consider those with medical marijuana cards as legally disabled, thus providing protection in the workforce. These states also require employers to reasonably accommodate the medical needs of an employee who holds a legal medical marijuana card.

If you possess a medical marijuana card, you’ll still need to consult your state’s laws and inquire about any company policies related to medical marijuana use.


Should employers be allowed to not hire you for marijuana use? Share your thoughts below.

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April Jones
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Drugs period should be affordable and legal. Suffering seems to be more excepted. That's wrong. Rules need to be changed. For a healthy lifestyle of the not so rich but not so much suffering

3y
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Marion Hoeller
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If I were hiring, I would not hire someone who smoked. I have friends and acquaintances who "smoke a little" weed or vape or gummies or, or, or. They say it doesn't change them. I beg to differ. I have noticed permanent changes in them over the years...in that they partake more and more, as well as mental changes. Don't get me wrong, I am for it medicinally; however, it should be outlawed recreationally.
And in the outside world, I should not have to inhale secondhand smoke (of any kind!) from someone who is smoking nearby, I don't care whether it is in their space or not if it wafts into my space.
Why should "potheads" have more "rights" than those who don’t! Medical...ok, IF it is truly needed. But don't "force" me to join in (neighbor, driver, you waiting on the bus, etc.), there are methods without the smoke. To you health (and mine)!

3y
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ROBERT FITZGIBBON
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...I enjoyed Marijuana recreationally throughout my life, all over the world while building a career with US DoD. At the age of 49...I was found to have been genetically epileptic and having horrific "unobserved seizures" throughout my life. After a period of six years, and thousands of medically-documented-seizures...I have a prescription for Medicinal Marijuana...and have not had a seizure for the last 6 years. If I were diabetic, and this was insulin...there wouldn't even be a conversation. Yet...diabetics and people with low-blood-sugar can do horrendous things when off their meds, as can almost anyone who takes prescriptions which change their physical or mental outlook. If I am sitting at a bus stop, and experience a seizure aura...a potential seizure coming...what is the difference between me taking a hit off a bowl of weed...and the diabetic next to me shooting themselves up with insulin to prevent some diabetic incident? Nothing. Society is going to have to learn that that they were brain-banged and propagandized to in terms of "The Devil Weed". It was all about creating and holding onto their mind-altering-substance-monopoly...and nothing to do with the truth or the societal value of Marijuana to society.

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logical outcomes
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If you need legal advice or assistance or even looking for a side job I am hiring! Please visit smoreno23.wearelegalshield.com for further information all my contact information is in there! I look forward to hearing from you soon! And having you apart of my team!

3y
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Jerry Baker
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Press Brake Operator

I have used it since 1969 and have had all sorts of jobs from coast to coast and it’s always been a time and place deal but never had a problem until it was legalized, now… I have a medical card and utilize it in that manner I do not at 62 years party or use it like that so much at all however recently I was terminated from a good position after being asked if I had been drinking because someone purported that I was behaving strangely and of course I hadn’t been drinking it was a very hot day and was feeling a little below my common norm due mainly said conditions and a mask but they went on to suggest that I take a screening test saying they were concerned for my safety and health and though I stated that I felt ok I remained cooperative and willing to do as they asked. On the way to the location to be screened to see if I had been drinking I informed the Forman taking me there that I do have a prescription for cannabis as a medication and have had one for years and that if anything like that other than alcohol showed up in the results that, that was the reason why. Of course I didn’t have a positive test for alcohol and the THC did show on the test they used that as reason though I gave them fore notice of it and why. I felt that they had not valid reasoning to terminate me on that basis and my medical reasons should have basically shown just cause for my use of it outside of the workplace which as I mentioned is sporadic at best and as I feel is needed. I never discuss it at work am single and do not do it with anyone from the workplace outside of there. That during the pandemic and or really any other time is a form of undermining of both myself and over twenty-five years in an industry that I have never had an issue regarding it even when it was illegal. Medicine is medicine especially when I am a registered user and do not by law beyond reason have to explain. The undermining is the fact that it harms a person’s ability to acquire new work and chips away at a person’s credibility and integrity even though I have over twenty years of positive safe productivity and conduct so I felt they used the excuse of alcohol which of course I wasn’t using as a weak excuse to use THC in my system to excuse me otherwise I was having no problems what so ever at work or in life. I feel that it should be defined in the workplace machine operator or otherwise like we do in life in that an adult is responsible for their conduct and selves like anything else atoned to the safety of oneself and others. It does not belong in the workplace and low key is always the best policy regarding it, all kinds of people use way more potent medications everyday in all things we have to do and we don’t ever really give it much thought what makes a medical prescription for cannabis any different especially if a person using it does not call attention to themselves as a result of it. No

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Paul Hogan
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Instructor at Transportation Company

You remember the old saying go to the bathroom or get off the pot LOL. Why are our legislatures playing games with us why is there not clear concise legislation. If you are prescribed this medicine no one has a right to come and tell you you can't take it it's like HIPAA law got none of your business and you're not speaking my pee to see if I took the codeine with Tylenol last night it's my body my medical there's lots of protect me now why these people playing games with us the employer has no right to sit there and take my urine I'm sorry I don't believe in it at all I have not committed a crime until I've committed the crimes I have not been negligible until I'm negligible you going out of the pretense that you might not like my culture or the medicine that I take. So I refrain from using marijuana and I passed the urinalysis as soon as I get home I light up a joint what are you going to piss test me everyday waste money when it's legal and I don't care about protection if you got to push it all the way to the top they're going to say you can't do it because it is legal. You know the employer doesn't like it he can hire some other dishwasher or waitress or salad chef because these are really the only viable jobs I have in America anyway pathetic. You sure with it right bathroom pot giggity

3y
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Cynthia Bryce
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No

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Millard Alexander Dorsey, MAD1
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Why does it take 5k + (3,5k) and growing folks), in the wings to get a response that is still growing? I come from the Xerox area with IBM and WATSON as a prodigy? Grass or Weed or Hemp, or WTF-IZZAT, became a marketable idiomatic-expression as free conversations! If your latitudes focus on the political lies, the product is captured and falsely identified then branded! I'm from 1968 - 2021.. I did not or enjoy grass, however I truly know the aspects and cultivation. As a member of the ICO, (International Coffee Organization), my division was mechanical "Air Void" containers and boiling POT's 60 oz per X amount of 'ready beans! I laugh at a question that was so obvious at the start. I admire what goes around comes around. I will help you in the same manner that COFFEE is still one of the most addictive products in the world. Love you for your question. See YA!

3y
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