New Marijuana Laws Create Drug Testing Confusion for Employers


The new year has brought a plethora of new marijuana laws in multiple states. From an employer’s perspective, some of these new laws could create drug testing confusion. If you run a business in a state affected by one of the new laws, it is time to get with your legal team to understand the impact on your hiring and firing.

Marijuana has long been the source of conflict between federal and state government agencies. The problem is this: marijuana is still considered a banned substance under federal law. Yet states have taken it upon themselves to approve it for both medical and recreational purposes. This creates a conflict for employers trying to reconcile federal regulations with state employment laws. It is a real problem for drug testing programs.

Recreational Use Legal in Illinois

To illustrate the potential confusion, we look to Illinois where recreational marijuana was legalized as of January 1. Any Illinois resident over the age of 21 can now possess, use, and buy marijuana. Moreover, the Illinois Right to Privacy Act bans discrimination against employees for using lawful substances on their own time and away from work. Marijuana is now a lawful substance.

At first glance, it would seem that employers are not allowed to test for marijuana use. And if marijuana use is observed casually during a drug test, it must be ignored. However, it is more complicated than that.

Illinois employers are allowed to conduct post-accident drug testing if they have a reasonable suspicion that an employee was under the influence of marijuana at the time of the accident. Employers can look at the employee’s behaviour and recognized symptoms to determine whether or not it is reasonable to suspect impairment.

Employers may also discipline employees who test positive for marijuana if evidence suggests that impairment resulted in injuries to the employee or others, significant damage to property or equipment, disruption of production or manufacturing processes, etc.

Laws in the Other States

As you can see, Illinois law now prevents employers from testing for marijuana except when there is reasonable suspicion that an employee was under the influence of the drug at work and, because of that influence, caused some sort of problem covered under the law. Yet the law is not black and white. It undoubtedly will leave some employers scratching their heads.

In Nevada, employers can no longer include marijuana in their pre-employment drug tests except when it comes to first responders, those who drive for a living, and any other jobs for which marijuana use could pose a safety risk to others, as determined by employers.

New York City has enacted a similar pre-employment law that will go into effect in May. That law will ban pre-employment marijuana testing except for law enforcement, CDL drivers, those involved in childcare, positions requiring compliance with certain city building codes and labour laws, and any other positions with significant safety risks.

It Might Be Time to Speak to an Attorney

BenefitMall, a Dallas company that provides payroll, benefits, and HR services, says it is routine for employers to accommodate new laws at the start of the year. Nonetheless, these particular laws might make it difficult for employers to know how to administer drug testing policies.

BenefitMall advises employers to consult their legal departments for clarification. Smaller companies without legal departments would do well to contact an attorney with experience in these sorts of matters. It is going to take a while to sort out the marijuana laws and their impact on drug testing policies. In the meantime, employers are going to need sound legal advice.