Now that Marijuana is Legal Can I Still Require My Employees to Pass a Drug Test?  This is a question that our clients have been asking – especially those in Colorado and Washington State, where possessing small amounts and recreational use have been decriminalized.

First, we must clear up some misconceptions surrounding the “legalization” issue.  Under federal law, marijuana remains a Schedule 1 drug, the highest classification under the Controlled Substances Act of 1970.  Given most arrests are made at the state and local level and federal enforcement resources are limited the effect is people who possess marijuana in those states will have little fear of arrest.

Laws in both states favor employers, especially in the area of drug testing. Colorado’s Amendment 64 includes a direct statement regarding testing, “Nothing in this section is intended … to affect the ability of employers to have policies restricting the use of marijuana by employees.”  Washington’s Initiative 502 was not as direct.  But the State’s Supreme Court has already ruled that even a medical marijuana patient whose job was not public-safety sensitive could be fired for testing positive, making it unlikely that recreational use would receive more protection.

In addition to changes affecting recreational use in Colorado and Washington, as of February 2014, 20 states and the District of Columbia had legalized the use of marijuana for medical purposes. However courts across the country are affirming employers’ rights to terminate employees for positive drug tests – mainly because marijuana remains illegal at the federal level.  Courts are not finding legislative intent to extend employment protection to those engaged in activities that violate federal law.

Employees do not understand the distinction.  They read the headlines proclaiming “Pot is legal” and believe their jobs are protected.  Because of this confusion we recommend you communicate clearly with your employees.  If changes in state laws have caused your organization to change its policies – let your employees know.  If your policies haven’t changed make sure that is explained as well.