How Will Legalizing Marijuana Affect Drug Testing?
Updated: Jun 29, 2022
So, I was recently talking to someone from Illinois that has apparently found a new hobby since the legalization of marijuana in that state. This made me start wondering how the legalization of marijuana, fully or just medical, in some states but not others will affect drug testing for employment now. I know I'm going to regret researching for this post when the targeted ads on social media start flooding me with cannabis related ads. *sigh*
The following is a table giving the basic information of legality by state at the time of this posting. This information is from https://disa.com/map-of-marijuana-legality-by-state.
I currently live in Missouri where medical marijuana is now legal. Illinois is just right next door, and a lot of people in the St. Louis area live in one state and work in the other. How will this legalization in Illinois affect employers in Missouri?
The short answer is that it's complicated. I know, I know. That's a cop-out answer. However, the laws in each state are different in regards to this, and employers can still enforce a "no tolerance" policy. There have been cases where a person with a medical marijuana license has been fired from a job and lost lawsuits after suing the employer for wrongful termination because marijuana is still illegal federally (https://www.nolo.com/legal-encyclopedia/off-duty-marijuana-can-fired-smoking-pot-legally.html).
Many people liken the recreational use of marijuana to the use of alcohol, which is a fair comparison. Both of these vices impair the user and people should not be under the influence of either while at work, especially if your job requires the operation of a firearm or heavy machinery. The problem is that THC stays in the bloodstream for much longer than alcohol, and even though someone may not be under the influence at a given time, it will still appear on a test.
Some states are passing laws to address some of these issues: New York and Nevada have passed laws to consider people that use medical marijuana as legally disabled, and Nevada has passed another law preventing an employee from being fired for testing positive for marijuana (https://www.thebalancecareers.com/marijuana-and-employment-drug-testing-4160426).
Most other states do not have any such laws in place, though, to protect employees that fail a drug screening for marijuana even though it is legal in the state. Now, Missouri, doesn't have any laws in place when it comes to drug testing by a private employer: it is neither prohibited nor restricted unless it violates another law (https://www.nolo.com/legal-encyclopedia/workplace-drug-testing-missouri.html). This makes things more complicated if a tested employee is let go from their job; they will have to explore other avenues to try and fight the termination if they feel the drug testing was not "fair."
I can see this being an ever bigger problem for someone in the case of a workman's comp claim. It is routine for someone to be drug tested after a workplace injury to make sure that the employee was not themselves negligent. It will be even harder for the employee to prove that they were not under the influence at that moment since these types of screenings will probably still test for marijuana. Per OSHA regulations, this testing, however, cannot be used to punish the employee after an incident but can be used to determine "misconduct" (https://mogreenway.com/2019/10/31/medical-marijuana-osha-and-workplace-drug-testing-in-missouri/).
So, basically, a lot has changed regarding the laws when it comes to marijuana usage, yet a lot hasn't changed. Right now, it's still going to be a use-at-your-own-risk activity when it comes to your employment until federal and employment laws catch up to the other laws that are changing. You'll have to check your individual state's laws and possibly even your employer's/potential employer's policies regarding the usage of legal medical or recreational marijuana.
Now to go start searching for a bunch of random stuff to adjust the ad algorithms...