The start of a new year is a good time for employers to review their handbooks and ensure policies are updated to reflect the latest legal developments. This is particularly true of cannabis-usage and related drug-testing policies, after 2021 saw even more states legalize recreational usage. Here, we address four of employers’ most common questions as they tackle the challenges surrounding workplace cannabis usage policies.

1. With the number of states that have now legalized medicinal or recreational cannabis usage, can an employer still have a zero-tolerance policy toward cannabis?

The answer depends on the laws of each state in which the employer operates as well as what federal laws apply to the employer’s workforce. Employers can continue to prohibit cannabis use (a) during work hours or (b) on-the-job impairment. However, some state laws prevent an employer from firing an employee or refusing to hire an applicant simply because the worker tests positive for cannabis usage.

State law: At least 15 states, including Arizona, Illinois and New York, currently prohibit discrimination against authorized medical marijuana users. At least three states—New Jersey, New York and Nevada—also now prohibit discrimination against employees who lawfully use recreational marijuana off duty. Thus, in those states, employers that fire an employee solely for testing positive for cannabis may be violating state law. With the remote working environment, it’s also important to keep in mind that the law of the state where the employee is physically working likely governs.

Safety-sensitive positions: There may be exceptions to the aforementioned laws with respect to employees who work in safety-sensitive positions. A no-tolerance policy for safety-sensitive positions helps employers provide a safe workplace and protect against on-the-job injuries, which in turn helps mitigate against legal risk. That said, there is also a growing body of caselaw where employees have successfully challenged their termination on the grounds that their position did not truly qualify as safety-sensitive. For example, in 2021, the Iowa Supreme Court ruled that two employees who stacked cigarette boxes were improperly classified as safety-sensitive workers. Thus, classifying broad swaths of positions as safety-sensitive will likely not withstand legal scrutiny. Employers must (a) check relevant state law on what positions may be designated as “safety sensitive” and thus subject to stricter drug-testing rules and (b) conduct position-by-position analyses. A good rule of thumb is to analyze the duties an employee regularly (rather than occasionally) performs and to ask whether those duties create a risk of harm to the employee, other workers or the public.

Federal law. Notably, some employers and workers in certain sectors may be subject to stricter federal regulations that preempt more relaxed state laws. For instance, US Department of Transportation (DOT) regulations require drug testing for certain positions, including commercial truck drivers. Thus, their employers may be required to maintain strict zero-tolerance policies for covered workers.

At the same time, the Drug-Free Workplace Act (DFWA) generally does not provide a sufficient justification for a zero-tolerance policy. The DFWA requires certain federal contractors and federal grant recipients to maintain drug-free workplaces. However, the DFWA does not require employers to drug test or to fire employees who use cannabis outside the workplace. As such, courts have routinely rejected the argument that the DFWA required a termination that violated state law. Thus, federal contractors and grant recipients still need to comply with state law while also balancing their obligations under the DFWA.

2. Other than compliance with applicable laws, what else should employers consider when developing workplace policies around cannabis use?

After ensuring compliance with state and federal laws on cannabis usage, as discussed above, employers should consider what cannabis policy makes the most sense in terms of recruiting and retention, and maintaining a productive workplace culture.

Given the current tight labor market, a number of employers have relaxed their policies on cannabis use to broaden the talent pool. For example, in 2021, Amazon publicly announced it would no longer test for marijuana in its pre-employment drug screens for jobs not regulated by the DOT. Other employers have taken similar steps, albeit more quietly. In fact, since at least 2019, pre-employment drug testing vendors have reported that numerous employers have dropped cannabis from their pre-employment drug screens.

For some employers, a well-known relaxed cannabis policy aligns with the company culture and helps it attract and maintain workers. Cannabis companies certainly fit that mold, as do companies that offer a host of non-monetary perks to compete for talent. Yet for other employers, openly permitting cannabis usage would conflict with their core mission or the image they want to present to the public. Thus, HR leaders must partner with company leadership on what makes the most sense for their workplace.

3. Do all employers need to revisit their drug testing policies?

Yes, employers certainly need to periodically revisit their drug-testing policies to ensure compliance with the rapidly changing legal landscape. But employers should also update their policies and practices on what it means to be impaired. The start of a new year provides a good opportunity to do so.

Unlike alcohol, where a blood alcohol concentration test provides a fairly accurate means of measuring impairment, there is currently no scientifically proven way to test whether a worker is currently impaired by cannabis. Current tests only show whether someone has used cannabis—not whether that individual is under the influence. Moreover, the length of time that a test will show cannabis in a person’s system can range from 19 hours or less to 30 days, depending on how often the individual uses cannabis and other factors. In other words, cannabis can stay in a person’s system long after the individual is experiencing any impairment.

In the absence of reliable testing methods, the onus to establish cannabis-related impairment falls on employers. For that reason, drug testing policies should clearly define impairment. Perhaps more importantly, employers must train supervisors in how to recognize and document signs of impairment, as such documentation can prove critical in defending against wrongful termination and similar claims.

4. How should a multi-state employer approach a unified cannabis policy?

Employers that operate in multiple states with differing cannabis laws have essentially two options. One, they can develop policies and practices specific to each state/locality. This approach may work best for an employer who wants to take as strict approach as possible against cannabis usage in the workplace, but it will also require frequent policy updates and more robust training for management.

Or two, employers may elect to adopt a single, looser company-wide policy that complies with the most protective set of laws applicable to their workforce, with exceptions only for federally regulated or safety sensitive positions. Many employers prefer this approach for its administrative and operational simplicity.