In just half a year, there have been more than 50 legislative initiatives aimed at the legalization and decriminalization of marijuana. Recreational use of marijuana is already legalized in Colorado, Washington, Oregon, Alaska, and Washington DC. The legalization of medical marijuana is even more widespread, having been fully legalized in 18 different states.

As more and more states legalize marijuana, employers worry whether they will be able to keep their workplaces drug free or if a change of workplace drug policy is in order.

Are companies still allowed to test based on suspicion of drug use?

If your policy allows for it. Your drug testing policy must be established and implemented, and all employees must be made aware of it. Soon, OSHA will also begin enforcing a new regulation which will require employers to have a “reasonable procedure” for employees to report work-related injuries and illnesses, and to not to discriminate or retaliate against employees who report such injuries or illnesses. That means that your company may not have a “blanket” post-accident testing policy. Rather, post-accident testing will be permitted only if there is a “reasonable possibility” that drug use was a contributing factor in workplace injury or illness.

Will marijuana legalization change an employer’s ability to drug test?

No, companies are still free to drug test employees because it is their right to decide what behaviors are acceptable for their workers and for the safety of their workplace. Dismissal for drug use is no different than dismissal for criminal charges or negative comments on social media.

Is the same true for medical marijuana use?

In many states, yes (though you should be sure that you are aware of policies in the state you are in.) Case law favors employers that have dismissed employees who tested positive for medical marijuana use, as medical marijuana is not legal at a federal level.


As long as employers enforce drug policies fairly, and always adhere to their own policies, they may continue to drug test as they please. Drug testing often helps lower worker’s compensation costs and health care premiums. But most importantly, drug testing keeps employees safe.