Marijuana Laws – The Impact to the Employer

As a growing number of states continue to legalize recreational and/or medical marijuana use, the enormous impact to the employers is undeniable. Evolving state cannabis laws combined with federal laws that still oppose the drug present unique challenges for employers to navigate through pre and post hire.

Despite federal law still classifying cannabis as a Schedule I drug (the same as heroin and cocaine), 38 states and Washington D.C. have approved medical marijuana use and 22 of those states and Washington D.C. also approved recreational use. Schedule I drugs, under the Controlled Substances Act, are deemed to have no medical value and a high potential for abuse. And while several bills have been introduced to Congress with the goal of reforming these marijuana laws, none have come close to succeeding.

Realistically, until laws are passed at a federal level or state laws become more uniform, employers should expect formidable territory when it comes to drug use and testing policies and procedures.

When looking at whether you should test for marijuana or not, employers should first and foremost understand the laws in their state and city. Some jurisdictions, like New York City and Philadelphia, prohibit pre-employment drug testing for marijuana all together, while others, like Nevada, allow the testing but ban adverse action that is based upon a pre-employment drug test that is positive for marijuana. It’s important to note that there are exemptions to such laws for safety-sensitive positions, such as those involving driving and piloting vehicles, ships or planes. For example, U.S. Department of Transportation’s regulations must be followed regardless of state and local marijuana laws.

A solid drug policy still goes a long way to help ensure a safe environment in the workplace. Due to the sensitive nature, workplace drug policies should be airtight and very specific to reduce the risk of litigation and discrimination claims. All policies should be reviewed by a lawyer to fully ensure compliance with local and state laws. And, because of the ever-changing laws, these policies should be updated regularly.

Drug testing policies may include but are not limited to:

  • Specific defined use and possession rules
  • Post-accident testing rules
  • Drug related conviction and arrest consequences
  • Access to support for employees with drug problems

A study by the National Institute on Drug Abuse reported that employees who tested positive for marijuana had 55% more industrial accidents, 85% more injuries, and 75% greater absenteeism compared to those who tested negative for the drug.

Marijuana also had a negative impact on the bottom line with:

  • Increased turnover
  • Increased worker’s compensation claims
  • Increased unemployment claims
  • Decreased productivity

Faced with an increasingly difficult terrain, employers are some of those impacted most by the legalization of marijuana, be it medicinally or recreationally. It’s a challenge now more than ever to keep a workforce safe, productive, and compliant. How is your business impacted by the legalization of marijuana? Let us know in the comments or email us at

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