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Can Employers Still Drug Test in States Where Marijuana Is Legal?

The practicability of a drug test in states where marijuana is legal is increasingly becoming an issue of concern in the United States. Employees want to know why they should be made to undergo a drug test when marijuana is legal in their respective states.

employers drug test

There is currently no law that precludes an employer from conducting a drug test in all the states where marijuana is legal for use. The issue is not only with the use of marijuana on workplace, but off-work also, considering that THC remains in the bloodstream for a long time.

Whether or not your employer can conduct a drug test and take consequential steps still depends on the state. It also depends on whether you are using for medical or recreational purposes. Most states allow for registration as a medical marijuana card holder by people who have severe health conditions.

It is important to understand that the law in these states does not indicate that your employer cannot call for a drug test. No law expressly prohibits an employee from conducting a drug test. What differs is the effect of such drug test. This is largely dependent on the state, and whether the drug was used for recreational or medical purposes.

Legality of Drug Testing Based on Use

Medical use

In states such as Illinois, Delaware, Massachusetts and Arizona, employers can conduct a drug test, however, they cannot fire you if you test positive for marijuana as a medical marijuana cardholder.

Note that marijuana still remains illegal under the federal law, nothing stops employers in these states from conducting a drug test. They can also take the necessary actions in compliance with federal requirements.

Recreational use

In states such as Massachusetts, Oregon, Washington and Alaska, marijuana can be used legally for recreational purposes. The legalization of marijuana use for recreational purposes has no effect on the ability of the employers to carry out drug tests. In essence, employers in these states can still maintain their zero tolerance drug policies. Consequently, it does not stop them from firing an employee for off-duty use of marijuana.

Thus, it is safe to say that all employees including Federal, state as well as private ones can be made to undergo a drug test. As established by the Supreme Court in the case of Skinner v. Railway Labor Executives’ Association, drug testing is not an infringement of employee’s privacy. The court noted that drug tests may be necessary for the protection of the safety and health of others.

Position of Drug Testing  Based on States Laws

The laws in all the 50 states generally do not require employers to dismiss employees who use marijuana while on duty.  The difference as earlier mentioned is in the allowance given by each of these states to employees who use marijuana while off-duty.

None of the States stipulate that employers cannot conduct drug tests. They only provide for anti-discrimination protection based on the results of these tests. Thus in the following states an employee who tests positive cannot be fired if he is a medical marijuana cardholder.

  1. Arizona
  2. Connecticut
  3. Maine
  4. Illinois
  5. Delaware
  6. Arkansas
  7. Pennsylvania
  8. New York
  9. Nevada
  10. Rhode Island
  11. Minnesota

Note that the law in jurisdictions such as Delaware, Minnesota and Arizona expressly prohibits the hiring or firing of a person solely because of a positive drug test. The law in Maine further prohibits the drug testing of job applicants for the use of marijuana. The law in this jurisdiction also prohibits firing employees who are 21 years or above for off-work use of marijuana.

However, some states have no explicit provision regarding drug testing of employees. In essence, the laws on employees’ protection with regards to marijuana use are silent in the following states:

  1. California
  2. Colorado
  3. Ohio
  4. Michigan
  5. Oregon
  6. Washington
  7. Montana
  8. Michigan
  9. Alaska
  10. Hawaii
  11. Maryland
  12. Massachusetts
  13. New Mexico
  14. New Hampshire
  15. Washington D.C.
  16. Vermont

Further, some states have provisions that are unclear about drug testing. If you live in such jurisdictions, it is advisable to consult a legal practitioner to understand your position as an employee from the legal perspective. The states include:

  1. New Jersey
  2. Florida
  3. Louisiana
  4. Dakota

Legality of Drug Testing for First Time Employees

Employers in most states include undergoing a drug test as a condition for the first time employment. This is regardless of whether or not there is any justification to the fact that the prospective employee is a drug user. There is no law that precludes an employee from doing that, and so the practice is illegal. However, such a test has to be carried out on all employees and not just a single employee.

There are, however, some states that limit the operation of drug testing as a condition to employment. One of such states is California where a prospective employee can only be subjected to a drug test where he has been offered employment. The employment is then made conditional upon passing the drug test. In some other jurisdictions, employers are merely required to indicate in the job postings that prospective candidates would be required to undergo a drug test.

Note that you have the right to refuse a drug test as a prospective employee. The employer may however refuse to hire you based on this.

Drug Testing Based on Reasonable Suspicion

Regardless of the fact that marijuana is legal in your state, your employer can still test you if there is a reasonable suspicion that you are taking drugs. There is currently no law that says an employer cannot conduct a drug test based on reasonable suspicion.


In conclusion, nothing still stops employers from conducting drug tests in any state. Basically, what varies from one state to the other is the action which the employer can take for off-work drug use. This, however, does not extend to employees who are under the influence of marijuana during their work hours.