One of the hottest topics of discussion in the workplace drug testing industry is the legalization of marijuana. There are now 24 states (including District of Columbia) that have medical marijuana laws in place, 17 states that have legalized the use of cannabidiol (marijuana metabolite with a low THC content use to treat certain medical conditions) , and four states that have passed laws to legalize recreational use. Not surprising, many employers are asking the questions "Can we still test for marijuana?", "Should we still test for marijuana?", and "What do we need to do to ensure we are compliant with the laws of the states that we operate in?".

The answers can be complex and dependent upon many factors - what state you are in, under who's authority are you testing, and (most importantly) your company policy. Just because a state has passed laws to make it legal to use marijuana for medicinal purposes or recreational purposes, does not mean that you cannot test your employees for marijuana. At this time, marijuana is illegal at the federal level (it is listed as a Schedule I drug) so it is never okay for a Department of Transportation (DOT) covered employee to test positive for marijuana. DOT has issued two statements to clarify this for employers and Medical Review Officers (go to transportation.gov/odapc to view "Recreational Marijuana Notice" and "Medical Marijuana Notice" links on the home page).

State laws vary greatly concerning marijuana. Some state laws are friendlier to the marijuana user than the employer who wants to test for marijuana use. For example, Arizona law ARS 36-2813 (effective 2010) includes the following language:

"B. Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either: 1. The person's status as a cardholder. 2. A registered qualifying patient's positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment."

This language effectively prohibits employers from not hiring a person who is a registered user (cardholder) who tests positive for marijuana on a pre-employment test (unless they lose monetary or licensing benefits under federal law). Some of the more recent laws passed are friendlier to employers. For example, Illinois law 410 ILCS 130 "Compassionate Use of Medical Cannabis Pilot Act" (effective 2014) includes the following language:

"(b) Nothing in this Act shall prohibit an employer from enforcing a policy concerning drug testing, zero-tolerance, or a drug free workplace provided the policy is applied in a nondiscriminatory manner."

We strongly recommend that companies obtain legal advice from their attorney if they are drug testing in any of the states that have legalized marijuana in any manner. Currently Indiana has not passed any laws to legalize marijuana.

Aside from whether marijuana use is illegal or not, it does not change the fact that studies show employees under the influence of marijuana are a safety concern. Short-term effects of marijuana use include impaired short-term memory, impaired motor coordination, altered judgment and in high doses, paranoia and psychosis. Additionally, studies show that employees who regularly use illicit drugs can have a negative influence in the workplace by being more likely to ask for early dismissal or time off, to be absent, to be late for work, to be involved in workplace accidents, and to file worker's compensation claims.

A study in Washington State showed that for three industry groups (construction, manufacturing and services), injury rates declined significantly following the implementation of drug testing. So even if the Federal government moved marijuana to a Schedule II drug (which would make it legal to use if prescribed), there is still going to be a valid safety reason for employers to continue testing for marijuana. Many have asked if there is an impairment test for marijuana but unfortunately no one has been able to create a viable, cost-effective impairment test. The legalization of marijuana will continue to evolve and it's critical for employers to review their policies regularly and stay informed.