Drug testing for cannabis is an ineffective approach to workplace safety. Because THC and its metabolites stay in one’s system long after the last use1, drug tests result in completely sober, capable workers losing their jobs for having used cannabis days or even weeks earlier. These policies also push people to use far more addictive and dangerous medications, including opioids. Meanwhile, drug testing doesn’t detect workers who are impaired by alcohol, hangovers, fatigue, or a myriad of other factors. Employers with a safety-sensitive workforce should instead consider performance-based tests2, which can detect workers who are unable to safely perform regardless of the cause.
Legalization states are increasingly acting to ensure workers don’t lose their jobs for relaxing with cannabis instead of alcohol after hours. At least seven of the 21 legalization states — California, Connecticut, Nevada, New Jersey, New York, Montana, and Rhode Island — have some employment protections for adult-use cannabis consumers. And 19 of the 38 medical cannabis states have some employment protections3. These laws only apply to off-hours cannabis use. Every state allows employers to fire workers who are impaired at work.
Some of the employment protection laws add cannabis to existing “lawful off-duty conduct” statutes, which at least 29 states have enacted to protect workers from being fired for using tobacco or for otherwise engaging in certain other legal activities outside of work.4
Adult-Use States with Employment Protections for Cannabis
Prohibits firing, not-hiring, and otherwise penalizing workers for using cannabis off-hours and off-site. Prohibits drug screening for non-psychoactive metabolites of cannabis.
Excludes workers in building and construction trade; instances where federal contracts, licenses, or funding requires otherwise; and positions requiring a federal background clearance.
(C.G.S.A. § 21a-422p)
Protects job applicants and employees for discrimination based on cannabis use before they worked at the employer, with exceptions.
For an employer to penalize an employee for off-hours cannabis use or a positive test for cannabis, they must do so pursuant to a written policy that was distributed to all employees and prospective employees.
The protections do not apply to several types of employers and employees, including those with a primary activity of mining, construction, utilities, manufacturing, educational services, health care, social services, public order, safety, national security, and international affairs. They also don't apply if failing to act would put the employer in violation of a federal contract or cause it to lose federal funding.
(M.C.A. § 39-2-313)
Includes cannabis in a statute prohibiting discrimination against workers for using lawful products.
Does not apply if the employer believes their "actions are permissible under an established substance abuse or alcohol program or policy, professional contract, or collective bargaining agreement."
Does not apply to a non-profit with a mission that is discouraging the use of lawful products.
Bans most employers from using pre-employment drug testing with cannabis (Does not include protections for current employees).
Exceptions include safety sensitive positions, if federal law requires otherwise, and if the law is inconsistent with collective bargaining agreements.
Prohibits firing, not-hiring, or penalizing workers because they use (or do not) use cannabis. Prohibits taking negative action based on metabolites in the system.
Exceptions: using cannabis/being under influence at work and federal contractors can revise to be consistent with federal laws, rules, and regs. To take action if under influence at work: (1) the employer’s testing program must use scientifically valid methods (e.g., saliva, urine, or blood tests); AND (2) a certified Workplace Impairment Expert (certification developed by the Cannabis Regulatory Commission in conjunction with the New Jersey Police Training Commission) must have conducted a physical evaluation of the employee and determined the employee is under the influence of cannabis.
(N.Y., Labor Law, § 201-d.)
Includes cannabis "in accordance with state law, outside work hours, off of the employer's premises and without use of the employer's equipment or other property" in lawful off-duty activities statute. New York’s lawful off-duty activities law makes it illegal for employers to “refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment” for the covered activities.
Exceptions for federal mandate or loss of federal funding. Employers can have a drug and alcohol policy and can act based on the belief actions were permissible under that policy.
(R.I.G.L. § 21-28.11-29 See also: § 28-6.5-1 for drug testing limitations)
Prohibits negative action “solely for an employee’s private, lawful use of cannabis outside the workplace and so long as the employee has not and is not working under the influence of cannabis.”
State law also restricts when drug testing is allowed for employees and what actions can be taken based on it (not just for cannabis).
Exceptions for collective bargaining agreement provisions allowing discrimination and when mandated by federal law, licensing, or contracts. For safety-sensitive positions, employers can prohibit cannabis use 24 hours prior to work.
Note: This is offered for educational purposes only and may not be taken as legal advice.