Pre-employment testing for marijuana

Eric Harrison


Wimberly Lawson Wright Daves & Jones, PLLC

Thirty-three states have now legalized medical marijuana use and 11 states (Maine, Vermont, Massachusetts, Michigan, Colorado, Washington, Oregon, Nevada, California, Alaska and Illinois) have also legalized recreational use. Further, Colorado just announced it has collected over $1 billion in cannabis tax revenues, so more states are likely to follow. As the wave of cannabis legalization grows, more employers, including in states where marijuana use has not yet been decriminalized, are reassessing how to handle pre-employment drug testing for marijuana. Some employers, especially those with multi-state operations that include states where cannabis is legal, are simply deciding not to test every job applicant for marijuana use.

Further complicating matters is that state and local governments are stepping into the issue. Nevada just became the first state to pass a law, taking effect in January 2020, preventing most employers from drug testing potential new hires for marijuana use (some safety sensitive jobs are excluded). In April, New York City passed a similar local law that will also take effect in January 2020. For these reasons, many employers, especially those with multi-state operations, need to reassess their pre-employment drug testing policies, especially those with blanket drug policies prohibiting marijuana usage. The pre-employment drug testing policies will have to be scrutinized in light of state and local legislation, as well as the practical effect of pre-employment testing on the potential applicant pool given the increasingly widespread usage of marijuana by job applicants, particularly in states where it has been legalized