Can Companies in Your State THC Test Employees?
Cannabis has long been an illegal substance in the United States, and it’s only in the last decade or so that states have started to legalize the substance on an individual basis. Cannabis remains federally illegal in the United States. The Reagan administration mandated that all federal workers undergo THC tests in 1986, and since then cannabis consumers have been living in fear of having to submit to drug testing at their places of employment.
Within a decade following the presidential decree, the War on Drugs brought marijuana testing requirements into the workplaces of companies all throughout the nation. THC tests are still routinely administered by the vast majority of employers throughout the United States.
However, in contrast to alcohol, THC may stay in the body for weeks after use and can be detected in a urine test or hair follicle screening. It is impossible for an employer to demonstrate that an employee was impaired while they were working using a THC test. This is one of the reasons that we created Gaize - virtually everyone agrees that impairment on the job is ill-advised. This is particularly true of those in safety sensitive positions. With Gaize, employees can use marijuana on their off time, and still work in a safe environment with real-time marijuana impairment testing. Learn more about Gaize for workplaces by clicking the button below.
While many states that have legalized marijuana have also legislated THC users as a protected class, in some states this is not the case. For workers in states with THC use protections, employers cannot take adverse action against employees or prospective employees based on the presence of THC in their body. Elsewhere, employers are still permitted to fire employees based on the results of urine or hair follicle THC testing.
Of note, any position that is regulated by the US Department of Transportation is still prohibited from THC use, even in states where THC use is protected by law. That is because marijuana remains illegal at the Federal level in the United States.
The year 2022, proved to be on the side of workers, with states like California and New Jersey passing legislation and releasing new state guidelines for how employers can test their current employees and prospective employees for marijuana use. Employers in all states with legal access to marijuana need to transition to testing their workers for active impairment, not the presence of THC. This is the only fair way to keep a workplace safe with marijuana.
The following is a list of states and their testing laws for marijuana and other drugs. These are accurate as of the end of 2022, but laws change regularly, so please seek the advice of an attorney. The following is not legal advice and may contain inaccuracies, though we’ll do our best to keep it up to date as laws change.
Alabama
Allows for the testing of THC.
There is presently no law in Alabama shielding workers from firing or other retaliation for using medicinal marijuana.
According to the legislation, “nothing in this article will be understood to preclude an employer from adopting reasonable work rules relating to employee ownership, use, sale, or procurement of drugs, including convictions for drug-related crimes and taking action based upon a breach of any of those rules.” This includes taking action based on a conviction for a drug-related offense.
Alaska
Allows for the testing of THC.
According to the Restrictions on the Medical Use of Marijuana statute for the state of Alaska (AS 17.37.040), employers are not required to protect or accommodate medical cannabis users.
It is added in Chapter 17.38 that “nothing in this chapter is intended to require an employer to allow or accommodate the use, consumption, possession, exchange, display, transportation, sale, or growing of marijuana in the working place, nor is it intended to affect the capacity of employers to have laws restricting the use of marijuana by staff.”
In other words, workers have no protections for use of THC in Alaska.
Arizona
Does not allow for the testing of THC.
Arizona's Title 36. Public Health and Safety Revised Statute Section 36-2813 shields cardholding medical marijuana patients from a positive drug test for marijuana components or metabolites unless the patient used, possessed, or was impaired by marijuana on the workplace premises or during work hours.
According to Arizona Revised Statute 23-493.05, “an employer has the right to take disciplinary action against an employee if the employee fails a drug test or an alcohol impairment test.”
This protection then does not apply to those who use marijuana for recreational purposes, and the Arizona Drug Testing of Employees Act allows employers to place restrictions on the kind of jobs that medical marijuana patients may have.
Arkansas
Does not allow for the testing of THC for medical cannabis patients.
Arkansas has worker protections built into its medical marijuana bill through the section entitled Drug Free Workplaces. It reads “Although the use of marijuana is prohibited while on DFA Property or during working hours, DFA may not discriminate against an applicant or an employee in recruitment, termination, or any terms or conditions of employment or otherwise penalize an Applicant or Employee, based on the Applicant's or Employee's prior or present status as a Qualifying Patient or marked caregiver under the Medical Marijuana Act of Arkansas.”
Obviously, those protections do not extend to recreational users, which remains illegal in Arkansas.
California
Does not allow for the testing of THC.
California approved AB-2188, which forbids employers from conducting traditional chemical THC metabolite based drug tests on prospective employees and protects current employees who use THC from adverse action by their employer. California’s protections are likely the strongest in the US at this time.
Colorado
Allows for the testing of THC.
Although Colorado led the way on cannabis legalization, the state is far behind on protecting workers who use the substance. There is no law in effect in Colorado that would shield medical marijuana patients or recreational cannabis users from drug testing and sanctions for using THC, even while not on the clock.
Colorado's provisional constitution of 1876 provides, under Article XVIII, Section 16, for the legalization of marijuana for private use under certain conditions. “Nothing in this section is intended to compel an employer to authorize or facilitate marijuana use, consumption, possession, transfer, exhibition, transit, sale, or cultivation in the workplace or to interfere with an employer's right to adopt rules regulating the use of marijuana by workers.”
Connecticut
Does not allow for the testing of THC.
With robust worker protections in place for THC use, Connecticut is a leader in logical cannabis policy.
Sec. 31-51t. No employer may determine an employee’s eligibility for promotion, additional compensation, transfer, termination, disciplinary or other adverse personnel action solely on the basis of a positive urinalysis drug test result.
NOTE: There are exceptions that are worth reviewing.
Sec. 31-51v. Prospective employees. No employer may require a prospective employee to submit to a urinalysis drug test as part of the application procedure for employment with such employer unless (1) the prospective employee is informed in writing at the time of application of the employer’s intent to conduct such a drug test, (2) such test is conducted in accordance with the requirements of subdivisions (1) and (2) of subsection (a) of section 31-51u and (3) the prospective employee is given a copy of any positive urinalysis drug test result.
Delaware
Does not allow for the testing of THC.
Employees in the state of Delaware who are using cannabis for medicinal purposes are protected from drug testing.
The Delaware Medical Marijuana Act protects medical marijuana patients against employment and termination discrimination based solely on a positive drug test. Specifically, an employer may not prejudice against a person in hiring, termination, or any other employee's contract of employment or otherwise punish a person if the bias is based on the person’s status as a medical marijuana patient, except under the following provision:
“Unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations, an employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon either the person’s status as a cardholder, or a registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.”
Florida
Allows for the testing of THC.
Employers in Florida may refuse to hire or fire a candidate or employee based on the results of a drug test (including a positive result for cannabis), regardless of whether or not the person is a medical marijuana patient.
In Florida, employers are allowed to use the results of any drug test, including those for cannabis, as grounds for rejecting or terminating employment. For the entire overview, see Section 381.986 – Medical use of marijuana and 440.102 Drug-free workplace program requirements.
Georgia
Allows for the testing of THC.
The state of Georgia has only legalized Low-THC oil for medicinal use. Specifically, Article F of Haleigh’s Hope Act doesn’t provide any worker protections of any kind.
“Nothing in the article shall compel an employer to tolerate or facilitate the use, consumption, possession, transfer, exhibition, transit, sale, or cultivation of marijuana in any form or to impair the ability of an employer to adopt a written zero-tolerance policy forbidding the on-duty, and off-duty, use of marijuana, or preventing any employee from having a detectable quantity of marijuana in his or her system.”
Hawaii
Allows for the testing of THC.
Despite Hawaii's 2000 legalization of medicinal marijuana, the state has taken no steps to ensure protection of applicants or employees who are holders of medical marijuana cards at work. An employer may terminate an employee based on the results of a drug test.
See the law here: §329-122 Medical use of cannabis; conditions of use.
Idaho
Allows for the testing of THC.
Idaho has no access to legal cannabis and therefore no worker protections for THC testing, including medical use. According to the Idaho Employer Alcohol And Drug-Free Workplace Act, “Nothing herein prohibits an employer from using the results of a drug or alcohol test conducted by a third party including, but not limited to, law enforcement agencies, hospitals, etc., as the basis for determining whether an employee has committed misconduct.”
Illinois
Does not allow for the testing of THC (in most cases).
Employees who use cannabis in Illinois are largely protected against discrimination, with several limitations, including the nonprofit sector.
From the 820 ILCS 55/) Right to Privacy in the Workplace Act:
“Except as otherwise specifically provided by law, including Section 10-50 of the Cannabis Regulation and Tax Act, and except as provided in subsections (b) and (c) of this Section, it shall be unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking and non-call hours.”
And from the Cannabis Regulation and Tax Act:
“(a) Nothing in this Act shall prohibit an employer from adopting reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call provided that the policy is applied in a nondiscriminatory manner.”
Indiana
Allows for the testing of THC.
There are no drug testing laws in Indiana, and neither medicinal nor recreational cannabis is legal. Workers are not protected, although CBD oil ownership is legal under federal law. A failed drug test for marijuana may be used as justification for dismissal or not being hired.
Iowa
Allows for the testing of THC.
Only low-THC cannabis oil is legal in Iowa, and workers are not afforded any special safeguards or considerations.
Employers maintain the power of screening or initiating action against an employee or potential employee with a verified positive test result owing to the use of medicinal cannabidiol as permitted under chapter 124E.
Relevant statute: 730.5 Private sector drug-free workplaces: “Employers retain the right of “testing or taking action against an employee or prospective employee with a confirmed positive test result due to the employee’s or prospective employee’s use of medical cannabidiol as authorized under chapter 124E.”
Kansas
Allows for the testing of THC.
There is currently no medicinal or recreational marijuana legislation in Kansas, and there are no laws that outline how employers should perform drug testing. Therefore, a positive test for THC may be used as grounds for disciplinary action or even termination. Only CBD, free of THC, is legal under federal law.
Kentucky
Allows for the testing of THC.
Medical and recreational cannabis use are both illegal in Kentucky. According to the state's Drug Free Workplace policy,
“The proper use of controlled or over-the counter drugs as part of a prescribed treatment program of the individual does not constitute, by the fact alone, a violation of the Policy, but it may be important for an employee’s supervisor to be aware such use is occurring in order to determine job assignment. Such use may provide a basis for reassignment, a leave of absence or termination because of medical reasons. An employee undergoing prescribed medical treatment with a controlled medication that could impair his/her physical, mental or emotional faculties must immediately report this treatment to his/her supervisor.”
The use of THC will therefore be a violation of state law and an employer may take adverse action.
Louisiana
Does not allow for the testing of THC for medical use.
Louisiana recently passed a law providing worker protections for medical THC use. From the bill, no employer “shall subject an employee or prospective employee to negative employment consequences for a positive THC test result,” so long as they are a medical cannabis user with a prescription from a licensed physician.”
Maine
Does not allow for the testing of THC.
Medical and recreational marijuana are both legal in Maine. Employees and candidates who use medicinal marijuana are protected from termination or demotion due to a positive drug test, so long as use is confined to outside of work hours.
“An employer may not refuse to employ or otherwise penalize a person solely for that person’s status as a qualifying patient…” but, the law does NOT require “an employer to accommodate the ingestion of marijuana in any workplace or any employee working while under the influence of marijuana.”
Maine released the following guide for employers: GUIDE FOR EMPLOYERS MARIJUANA AND OTHER SUBSTANCES OF USE IN THE WORKPLACE
Maryland
Allows for the testing of THC.
Marijuana is legal for medicinal and recreational purposes in Maryland, but there are no worker protections for the use of THC. That means that employers may continue to test employees for THC and penalize them, even for use in their personal time. The relevant law is linked here.
Massachusetts
Allows for the testing of THC.
Medical and recreational marijuana are both legal in Massachusetts. Unfortunately, employees who use cannabis have little explicit legal recourse against discrimination from their employment.
From the Massachusetts Regulation Aand Taxation Of Marijuana Act, “shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.”
However, under the state's anti-discrimination statute against people with disabilities, employers must provide reasonable accommodations for workers who use medicinal marijuana to address their conditions.
Michigan
Allows for the testing of THC.
Though medical and recreational cannabis use is now legal in Michigan, workers who test positive for THC still have no protection from drug testing or punishment in the workplace.
From the Michigan Regulation And Taxation Of Marihuana Act, “This act does not require an employer to permit or accommodate conduct otherwise allowed by this act in any workplace or on the employer’s property. This act does not prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while under the influence of marihuana. This act does not prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s violation of a workplace drug policy or because that person was working while under the influence of marihuana.”
This law is explicit about workers who are “under the influence,” which is something that is only discoverable using a human Drug Recognition Expert or Gaize. However, since it is likely that THC testing is allowed and that termination is allowable under the existing law until challenged in court.
Minnesota
Allows for the testing of THC.
Minnesota is one of the few states to allow medicinal marijuana, but patients there are afforded certain legal safeguards. The law, SF 2470, includes the following:
“(c) Unless a failure to do so would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon either of the following: (1) the person’s status as a patient enrolled in the registry program under sections 152.22 to 152.37; or (2) a patient’s positive drug test for cannabis components or metabolites, unless the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment. Or, (d) An employee who is required to undergo employer drug testing pursuant to section 181.953 may present verification of enrollment in the patient registry as part of the employee’s explanation under section 181.953, subdivision 6.”
Mississippi
Allows for the testing of THC.
Medicinal marijuana legal in Mississippi, but there are currently no protections for workers who use THC.
Senate Bill NO. 2095, “This chapter shall not be construed to do any of the following:
(b) Require any employer to permit, accommodate, or allow the medical use of medical cannabis, or to modify any job or working conditions of any employee who engages in the medical use of medical cannabis or who for any reason seeks to engage in the medical use of medical cannabis;
(c) Prohibit any employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an individual with respect to hiring, discharging, tenure, terms, conditions, or privileges of employment as a result, in whole or in part, of that individual’s medical use of medical cannabis, regardless of the individual’s impairment or lack of impairment resulting from the medical use of medical cannabis;
(d) Prohibit or limit the ability of any employer from establishing or enforcing a drug-testing policy.”
Missouri
Allows for the testing of THC.
Both medical and recreational cannabis are now legal in Missouri. The text of constitutional amendment 3 is available here. The law added worker protections, providing a safeguard against discrimination based on possession of a medical marijuana identification card, the legal use of marijuana outside of an employer’s property during nonworking hours, or a positive marijuana test. Employees are still precluded from working while impaired. Learn more from the State’s official website here.
Montana
Does not allow for the testing of THC.
As of January 1, 2022, Montana employees are protected against adverse action for using cannabis on their off time.
“Except as provided in subsections (3) and (4), an employer may not refuse to employ or license and may not discriminate against an individual with respect to compensation, promotion, or the terms, conditions, or privileges of employment because the individual legally uses a lawful product off the employer’s premises during nonworking hours.”
There are certain exceptions which employers and employees should familiarize themselves with.
Nebraska
Allows for the testing of THC.
There is no legal cannabis in Nebraska and no legislation specifically protects THC users, but Nebraska has created some unique requirements for employee drug testing.
The law, Nebraska Revised Statute 48-1903 specifies:
“Any results of any test performed on the body fluid or breath specimen of an employee, as directed by the employer, to determine the presence of drugs or alcohol shall not be used to deny any continued employment or in any disciplinary or administrative action unless the following requirements are met.”
(1) A positive finding of drugs by preliminary screening procedures has been subsequently confirmed by gas chromatography-mass spectrometry or other scientific testing technique which has been or may be approved by the department; and “
(2) A positive finding of alcohol by preliminary screening procedures is subsequently confirmed by either:
(a) Gas chromatography with a flame ionization detector or other scientific testing technique which has been or may be approved by the department; or
(b) A breath-testing device operated by a breath-testing-device operator. Nothing in this subdivision shall be construed to preclude an employee from immediately requesting further confirmation of any breath-testing results by a blood sample if the employee voluntarily submits to give a blood sample taken by qualified medical personnel in accordance with the rules and regulations adopted and promulgated by the department. If the confirmatory blood test results do not confirm a violation of the employer’s work rules, any disciplinary or administrative action shall be rescinded. Except for a confirmatory breath test as provided in subdivision (2)(b) of this section, all confirmatory tests shall be performed by a clinic, hospital, or laboratory which is certified pursuant to the federal Clinical Laboratories Improvement Act of 1967, 42 U.S.C. 263a.
Nevada
Does not allow for the testing of THC.
There are regulations in place for both legal medicinal and recreational marijuana usage in Nevada. Failure or refusal by an employer to hire an applicant based on THC testing is considered illegal discrimination under Nevada law.
NRS 613.333 specifies the following:
“It is an unlawful employment practice for an employer to:
(a) Fail or refuse to hire a prospective employee
(b) Discharge or otherwise discriminate against any employee concerning the employee’s compensation, terms, conditions or privileges of employment, because the employee engages in the lawful use in this state of any product outside the premises of the employer during the employee’s nonworking hours, if that use does not adversely affect the employee’s ability to perform his or her job or the safety of other employees.”
Suppose an employee's participation in the lawful use of a product in this state occurs off-site from the workplace during the employee's off-hours and does not interfere with the employee's ability to do their job or the safety of other employees. In that case, the employer may not terminate the employee's employment or otherwise discriminate against the employee in regard to the employee's compensation, terms, conditions, or privileges of employment.
New Hampshire
Does not allow for the testing of THC for medical patients.
While medicinal marijuana is authorized in New Hampshire, recreational usage is still prohibited for adults.
Employers are forbidden from discriminating against medical marijuana users in hiring, firing, or any other term or condition of employment or from penalizing them in any other way unless doing so would violate federal law or federal regulations.
The law, HB573, specifies, “Unless a failure to do so would constitute a violation of federal law or federal regulations, an employer shall not discriminate against an individual in hiring, termination, or any term or condition of employment, or otherwise penalize an individual, based upon either of the following: (1) The individual’s status as a registered qualifying patient or registered designated caregiver; or (2) A registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used or possessed, or was under the influence of or impaired by marijuana on the premises of the place of employment. For purposes of this chapter, “impaired” includes but is not limited to instances where the registered qualifying patient is not able to safely perform essential job tasks.”
New Jersey
Does not allow for the testing of THC.
Temporary recommendations for Workplace Impairment Guidance were adopted by the New Jersey Cannabis Regulatory Commission (CRC), which restricts employers from firing workers only for testing positive for cannabis on standard drug tests.
In order to utilize a drug test for reasonable suspicion in the future, employers will now be required to record evidence of impairment in the workplace. New Jersey has also taken the interesting step of creating what it calls “Workplace Impairment Recognition Experts” or WIREs who will be civilians trained to recognize drug impairment on the job. The certification and training guidance for WIREs has not been released yet.
The New Jersey Cannabis Regulatory Commission released the following Workplace Impairment Guidance. It requires employers to “document evidence/proof of impairment in the workplace to support the use of a drug test to confirm reasonable suspicion.”
New Mexico
Allows for the testing of THC.
In 2022, New Mexico also legalized cannabis for recreational use, but there are currently no safeguards in place for workers. The law specifies that it does not: “prevent or infringe upon the rights of an employer to adopt and implement a written zero-tolerance policy regarding the use of cannabis products. A zero-tolerance policy may permit the discipline or termination of an employee on the basis of a positive drug test that indicates any amount of delta-9-tetrahydrocannabinol or delta-9-tetrahydrocannabinol metabolite.”
New York
Does not allow for the testing of THC.
Employees who consume cannabis outside of the workplace, outside of work hours, and without using the employer's equipment or property are protected from discrimination based on that use. However, in cases where state or federal rules, regulations, ordinances, or other governments impose THC testing, employers may take employment action or ban employee behavior.
Section 201-D of the New York Labor Law specifies:
“Employers are prohibited from discriminating against employees based on the employee’s use of cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property.”
North Carolina
Allows for the testing of THC.
Except for cannabidiol (CBD) oil used to treat seizures, marijuana use is entirely illegal in North Carolina. There are no exceptions for cannabis usage under the Controlled Substance Examination Regulation. If an employee is suspected of using cannabis in North Carolina, they may be tested and may be terminated or not hired based on a positive result for THC.
North Dakota
Allows for the testing of THC.
Only medical marijuana is legal in North Dakota, and the state has no mandatory drug testing policies. The state failed to pass a recreational cannabis initiative in 2022. There is some ambiguity in the legislation regarding workplace rights since this chapter does not preclude an employer from penalizing an employee for carrying or ingesting useable marijuana in the workplace or for working while under the influence of marijuana.
See CHAPTER 19-24.1 MEDICAL MARIJUANA of the law, which states: “This chapter does not prohibit an employer from disciplining an employee for possessing or consuming usable marijuana in the workplace or for working while under the influence of marijuana.” This section seems to specify impairment, which can only be detected by a Drug Recognition Expert police officer, or Gaize. Functionally though, THC testing is common and doesn’t appear to have been challenged in court by a medical cannabis patient yet.
Ohio
Allows for the testing of THC.
The state of Ohio has legalized medicinal marijuana, but there are no safeguards for THC using workers who are subject to drug testing. Ohio mandates that businesses allow employees to consume, possess, and distribute medicinal marijuana or provide alternatives to these activities.
In the law, Section 3796.28 | Rights of employer spells it out.
Nothing in this chapter does any of the following:
Requires an employer to permit or accommodate an employee’s use, possession, or distribution of medical marijuana.
Prohibits an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s use, possession, or distribution of medical marijuana.
Prohibits an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy.
In short, even with a prescription for medical marijuana, workers in Ohio can have adverse action taken against them for using it.
Oklahoma
Does not allow for the testing of THC for medical patients.
Oklahoma has legalized medical marijuana and has created a series of statutes designed to protect medical cannabis patients.
The Law is here: Title 63. Public Health and Safety §63-427.8. Additional rights, restrictions and prohibitions related to medical marijuana use and possession.
Relevant language is as follows:
“Unless otherwise required by federal law or required to obtain federal funding:
1. No employer may refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of such applicant’s or employee’s status as a medical marijuana licensee; and
2. No employer may refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of a positive test for marijuana components or metabolites.
There are some exceptions to be aware of:
a. The applicant or employee is not in possession of a valid medical marijuana license:
b. The licensee possesses, consumes or is under the influence of medical marijuana or medical marijuana product while at the place of employment or during the fulfillment of employment obligations, or
c. The position is one involving safety-sensitive job duties, as such term is defined in subsection K of this section.
The law is clear that employers are not required to permit medical cannabis use on their premises or during work hours by their employees.
Oregon
Allows for the testing of THC.
Oregon has extremely permissive drug laws and has legalized the use of cannabis for both medicinal and recreational purposes. However, a positive test for THC can still legally result in discrimination against an employee or job candidate in the state. Although many businesses in the state have relaxed their standards anyway, there are no worker protections.
The relevant law is linked here.
Pennsylvania
Allows for the testing of THC, Philadelphia does not.
While medicinal marijuana is legal in Pennsylvania, recreational marijuana usage is not. Philadelphia is the only municipality in Pennsylvania to ban pre-employment drug testing for cannabis, but otherwise, there are no rules in place to prevent discrimination against those who use the drug at work.
Except as otherwise provided by law, or as excepted in subsections (2) or (3) hereof, it shall be an unlawful employment practice for an employer, labor organization, employment agency or agent thereof to require a prospective employee to submit to testing for the presence of marijuana in such prospective employee’s system as a condition of employment. (2) Exceptions. The prohibition of this Section 9-4702(1) shall not apply to persons applying to work in the following jobs or professions:
(a) Police officer or other law enforcement positions.
(b) Any position requiring a commercial driver’s license.
(c) Any position requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals.
Rhode Island
Does not allow for the testing of THC.
The use of cannabis for recreational purposes became legal in Rhode Island in 2022, and with that came some safeguards for workers who use cannabis outside of work hours, with certain limitations.
The law, RI H7593, is lengthy and specific about employee rights:
“Nothing contained in this chapter shall be construed to require employers to accommodate the use or possession of cannabis, or being under the influence of cannabis, in any workplace or the use of cannabis in any other location while an employee is performing work, including remote work. Employers may implement drug use policies which prohibit the use or possession of cannabis in the workplace or while performing work from being under the influence of cannabis, provided that unless such use is prohibited pursuant to the terms of a collective bargaining agreement, an employer shall not fire or take disciplinary action against an employee solely for an employee’s private, lawful use of cannabis outside the workplace and as long as the employee has not and is not working under the influence of cannabis except to the extent that: (1) The employer is a federal contractor or otherwise subject to federal law or regulations such that failure to take such action would cause the employer to lose a monetary or licensing related benefit thereunder; or (2) The employee is employed in a job, occupation or profession that is hazardous, dangerous or essential to public welfare and safety. If the employee’s job, occupation or profession involves work that is hazardous, dangerous or essential to public welfare and safety then the employer may adopt and implement policies which prohibit the use or consumption of cannabis within the twenty-four (24) hour period prior to a scheduled work shift or assignment.”
Further, “hazardous, dangerous or essential to public welfare and safety shall include, but not be limited to: operation of an aircraft, watercraft, heavy equipment, heavy machinery, commercial vehicles, school buses or public transportation; use of explosives; public safety first responder jobs; and emergency and surgical medical personnel.”
However, the following section is important:
“Nothing contained in this chapter shall prevent an employer from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions, or privileges of employment because of that person’s violation of a workplace drug policy or because that person was working while under the influence of cannabis.”
South Carolina
Allows for the testing of THC.
South Carolina has not legalized cannabis in any form - no medical or recreational use, and only CBD because it’s federally legal. Because of that, they have also not
South Dakota
Allows for the testing of THC.
South Dakota legalized medical marijuana but failed to legalize recreational marijuana via ballot initiative in 2022. The state has provided protections for medical cannabis users, but still allows employers to take adverse action if employees work while impaired or consume cannabis on the job.
To reference the law, Chapter 34-20G Medical Cannabis specifies:
“Except as provided in this chapter, a registered qualifying patient who uses cannabis for a medical purpose shall be afforded all the same rights under state and local law, as the person would be afforded if the person were solely prescribed a pharmaceutical medication, as it pertains to: (1) Any interaction with a person’s employer; (2) Drug testing by a person’s employer; or (3) Drug testing required by any state or local law, agency, or government official.
No employer is required to allow the ingestion, possession, transfer, display, or transportation of cannabis in any workplace or to allow any employee to work while under the influence of cannabis. No employer is prohibited from establishing and enforcing a drug free workplace policy that may include a drug testing program that complies with state and federal law and acting with respect to an applicant or employee under the policy.”
Tennessee
Allows for the testing of THC.
Tennessee has not legalized medical or recreational cannabis, and has no protections for THC users.
Texas
Allows for the testing of THC.
Texas has not legalized either medical marijuana or recreational marijuana, and therefore has no protections for employees who use THC.
Utah
Does not allow for the testing of THC for medical patients.
Utah has legalized medical cannabis, but not recreational yet. There are now worker protections in place for those with medical marijuana prescriptions, with some caveats.
Utah has medical marijuana, but no adults use cannabis. There are some new protections for residents and employees in the works. In 2022, legislators updated the Utah Medical Cannabis Act to treat an employee’s use of medical cannabis in the same way the state or political subdivision treats employee use of any prescribed controlled substance.
The law adds that an employee’s status as a medical cannabis cardholder or an employee’s medical cannabis recommendation from a qualified medical provider or limited provider in the same way the state or political subdivision treats an employee’s prescriptions for any prescribed controlled substance.
The relevant section from the Utah Medical Cannabis Act is as follows:
“an employee’s status as a medical cannabis cardholder or an employee’s medical cannabis recommendation from a qualified medical provider or limited provider in the same way the state or political subdivision treats an employee’s prescriptions for any prescribed controlled substance.”
Further, medical marijuana users should see Section 67-19a-101. It specifies that if they fail “a drug test due to marijuana or tetrahydrocannabinol without evidence that the employee was impaired or otherwise adversely affected in the employee’s job performance due to the use of medical cannabis,” that they cannot face adverse action on their employment. Although there’s almost no way to prove that it’s the case, those who use “medical cannabis during the 12 hours immediately preceding the employee’s shift or during the employee’s shift,” can face adverse employment action.
Employers are protected by allowing for the testing of THC if not doing so would interfere with federal contracts, or contracting opportunities.
Vermont
Allows for the testing of THC.
Marijuana has been legalized for both medical and recreational use in Vermont. With reasonable suspicion though, employers may still test for the presence of THC. Obviously, the simple presence of THC is not useful for corroborating the reasonable suspicion.
Employer MJ Guide for Vermont: “While Vermont’s medical marijuana laws do not require employers to tolerate the consumption or possession of marijuana in the workplace, the laws do not permit employers to discriminate against disabled applicants or employees who use medical marijuana outside of work to treat their disability.”
“Employers may prohibit or otherwise regulate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana on their premises; Employers may adopt policies prohibiting the use of marijuana in the workplace.”
“While Vermont law does allow employers to drug test employees, employers may only do so in very limited circumstances. Before considering drug testing employees or applicants, it is important that employers understand the specific requirements of the law, as set forth below.”
“Drug Testing Job Applicants Under Vermont law, employers may not require or request that an applicant for employment submit to a drug test unless all the following conditions are met:
The employer has already extended a conditional offer of employment to the applicant to be tested, contingent upon the applicant receiving a negative drug test result;
The employer gives the applicant written notice of the drug testing procedures and a list of the drugs to be tested. This notice must also state that any therapeutic levels of medically prescribed drugs will not be reported to the employer; and.
The drug test is administered in accordance with specific statutory requirements, including being tested by a laboratory approved by the Vermont Department of Health. These specific requirements are laid out in more detail below.”
Virginia
Allows for the testing of THC.
Virginia has both medical and recreational cannabis legally available. Uniquely, Virginia’s law, the Code of Virginia, protects patients who use “cannabis oil.” However, what exactly is determined to be cannabis oil is not clear.
Specifically, “No employer shall discharge, discipline, or discriminate against an employee for such employee’s lawful use of cannabis oil pursuant to a valid written certification issued by a practitioner for the treatment or to eliminate the symptoms of the employee’s diagnosed condition or disease pursuant to § 54.1-3408.3.”
Further, employers may “take any adverse employment action for any work impairment caused by the use of cannabis oil or to prohibit possession during work hours.”
And finally, Virginia has a unique call-out for THC concentration, which is entirely meaningless. Employers do not have to “hire or retain any applicant or employee who tests positive for tetrahydrocannabinol (THC) in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test.”
Washington
Allows for the testing of THC.
Washington was a leader in adopting both legal medical and recreational cannabis, but ironically, the state’s laws have not kept pace on worker protections for those who use THC.
See chapter 69.50 RCW, which allows employers to continue testing for THC to enforce “drug free workplace” programs, without acknowledging the contradiction that this creates for the legal cannabis laws.
Washington D.C.
Does not allow for the testing of THC.
Difficulty abounds with drug testing and cannabis use at the nation's capital. Patients who use medicinal marijuana in the District of Columbia are generally protected, although organizations are exempt if doing so would violate federal law, rule, contract, or financing agreement.
DC is located entirely on federal territory, and the federal government is the primary employer there. Consequently, despite the recent prohibition on pre-employment testing in DC, many workers in the District of Columbia are still subject to cannabis tests.
Consistent with D.C. Law 23-276. Medical Marijuana Program Patient Employment Protection Amendment Act of 2020. : Sec. 2062. Protections for qualifying patients, “Except as provided in subsection (b) of this section, a government agency may not discriminate against an individual in employment because the individual is a qualifying patient unless the individual used, possessed, or was impaired by marijuana at the individual's place of employment or during the individual's time on the job.”
Further, “The failure of a qualified patient to satisfy a drug test for marijuana elements or metabolites conducted by an organization may not serve as a reason for workforce decisions unless there is reason to suspect that the eligible patient was influenced by or used marijuana at the qualified patient's place of work or during the qualifying patient's hours of employment,” according to Washington D.C.'s cannabis testing legislation.
West Virginia
Does not allow for the testing of THC for medical patients.
Medical marijuana is legally available in West Virginia. The West Virginia Medical Cannabis Act makes some inroads against adverse action for medical cannabis patients, though it lacks much specificity (namely for drug testing protections).
From the law:
“(1) No employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical cannabis.
(2) Nothing in this act shall require an employer to make any accommodation of the use of medical cannabis on the property or premises of any place of employment. This act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical cannabis in the workplace or for working while under the influence of medical cannabis when the employee’s conduct falls below the standard of care normally accepted for that position.
(3) Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of federal law.”
Wisconsin
Allows for the testing of THC.
Wisconsin has not legalized medical or recreational cannabis. It therefore has no protections for those who use THC.
Wyoming
Allows for the testing of THC.
Wyoming has not legalized either medical or recreational marijuana, and thus has no protections for workers who use THC.
