Employers have long relied upon drug testing as the most objective way to determine whether an employee is using drugs in a manner that impacts work. With the ongoing trend towards legalization of marijuana across the county, the legal environment around drug testing for marijuana has never been more complex.
The Controlled Substances Act (CSA) regulations make marijuana an illegal Schedule I controlled substance. Schedule I is the most restrictive of the five schedules under the CSA and, in addition to marijuana, includes drugs such as heroin, LSD, and ecstasy.
The Drug Enforcement Agency (DEA), in conjunction with Department of Health and Human Services, is empowered to reschedule drugs based on new information. In May 2024, the DEA proposed moving marijuana from Schedule I to Schedule III, which includes drugs such as Tylenol with codeine, ketamine, anabolic steroids, and testosterone.
The final decision on that move is still pending and, as of this writing, marijuana remains a Schedule I drug. However, the “Marijuana 1-to-3 Act,” which U.S. House Rep. Greg Steube, R-Fla., reintroduced on August 12, 2025, after filing it in the past three congressional sessions, and recent comments from President Trump, suggest that re-scheduling could be on the near horizon.
The State Law Landscape
According to the CDC, at least 47 states allow the use of medical marijuana in some form, and 24 states permit non-medical adult-use marijuana. Since the CDC’s report, several other states have passed marijuana legislation.
In June 2025, Texas amended its “Compassionate Use Program” to expand access to and use of medical marijuana, but did not create any new employee protections or drug testing requirements. Other states, such as New York and New Jersey, have passed laws limiting employers’ ability to test and/or take adverse action for marijuana usage.
For example, employers in New York cannot test for marijuana unless state or federal law affirmatively requires it, and cannot use a positive marijuana test to support reasonable suspicion for disciplining an employee. In New Jersey, only after a specially trained “Workplace Impairment Recognition Expert” conducts a physical evaluation of the employee, along with supervisor observations of impaired performance, does an employer have reasonable suspicion to test an employee. California, Washington, Illinois, and Connecticut have similar restrictions on employee drug testing.
Even in states where drug testing for marijuana is relatively unrestricted, employers must still consider the potential ramifications under state anti-discrimination laws. For example, while an employee’s use of illegal drugs, including marijuana, generally cannot create discrimination or failure-to-accommodate liability under the federal Americans with Disabilities Act, an employee with a valid prescription for medical marijuana to treat a disability may be able to assert a discrimination or failure-to-accommodate claim under an equivalent state law.
Thus, employers may be required to engage in the disability accommodation interactive process as a matter of state law if an employee claims that a valid prescription is used to treat a disability. Various cases in states such as Massachusetts, New York, Rhode Island, Connecticut, and New Jersey have shown this.
Employers must balance compliance with these more expansive state laws against the employer’s general obligation to provide a safe work environment for employees and customers. Employers have an obligation under the General Duty Clause of the Occupational Safety and Health Act (OSHA) to provide a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
As part of the assessment of whether to accommodate an employee’s marijuana usage, employers must consider the potential consequences to workplace safety.
Employers should consider erring on the side of preventing any employee to work while impaired or while there is some evidence of impairment, regardless of the drug potentially causing the impairment.
Unlike breath alcohol testing for alcohol impairment, testing for other drugs, including marijuana, does not provide information as to current impairment.
Oral fluid testing, however, provides the best outcome for estimating potential current impairment, particularly for post-accident or for cause testing. Although modern testing methods generally cannot identify current impairment for marijuana, knowingly allowing a potentially impaired employee to work, particularly if an accident occurs, could expose the employer to workers’ compensation expense, tort liability and/or a OSHA violation.
Thus, there is a potential conflict (that has not been thoroughly analyzed in the courts) between state laws that protect marijuana and an employer’s obligations to maintain a safe workplace and to generally engage in accident risk mitigation.
Department of Transportation (DOT) drug testing requirements preempt any state law marijuana rights, so employers have no obligation to accommodate marijuana use for those employees who are required by federal law to be tested.
Employer Policy Considerations
For employers in states that have passed marijuana legislation, if an employee or applicant discloses use of medical marijuana, as with any other drug, the employer should engage in the interactive process to determine whether the person can work and work safely while taking the drug(s).
If not, the employer must evaluate whether the employee has a legally recognized disability and if any reasonable accommodation exists that would permit the employee to comply with the employer’s workplace drug policy.
In states with permissive recreational marijuana laws or laws that limit testing to “safety sensitive” jobs, employers should factor the degree of risk from impairment when determining how expansively to interpret these state laws.
Unfortunately, some of these state laws provide little or no flexibility. Guidance from counsel familiar with state drug testing laws is recommended for difficult situations.
When creating or evaluating their drug testing policies, employers also should consider state workers’ compensation laws. In some states, drug testing policies can reduce workers’ compensation premiums for employers, and a positive post-accident drug test can be a basis for denying a workers’ compensation claim. Even in states that prohibit adverse action based on a positive test, test results may be useful to the employer’s defenses in a subsequent OSHA investigation or tort lawsuit.
Employers should also consider whether they will conduct drug testing “in-house” or hire a third-party administrator to handle collection, testing, and medical review analysis. With the right third party administrator, employers can better ensure they are obtaining valid pre-testing consent, using certified laboratories for drug testing analysis, and medical review officers to verify results—all of which are general best practices for any employer that has a drug testing policy. While hiring an experienced third-party administrator may not always prevent litigation, it can better protect an employer from an aggrieved employee’s claims.
Finally, not all states with permissive marijuana laws have created a private right of action for employees under those laws. For example, presently, courts in Connecticut, Illinois, New Jersey, and New York have held that no private right of action exists under their respective marijuana laws. Still, as discussed above, those laws intersect with employer obligations under federal and state discrimination and privacy laws that could create a private right of action for employees.
Regardless of where an employer operates, it must consider the risk, including the media implications, of state law litigation against the risk of employee injury and/or an OSHA violation. In the age of legalization, employee drug testing for marijuana is fraught with potential pitfalls, and employers should always consult experienced counsel when creating and implementing their drug testing policies.