Legalized Marijuana: Off-duty Use and Drug Testing


While all marijuana use remains illegal under federal law, most states have enacted laws that allow certain uses of marijuana or cannabis, a marijuana derivative. None of these laws place any restrictions on an employer’s right to administer drug tests or to prohibit their employees from using or being under the influence of marijuana at work or during work hours.


However, it is not always clear whether an employer may take adverse employment actions against an employee based solely on a positive test for marijuana. As a result, several courts have issued decisions on this issue. These decisions will answer this question for employers in some legalized marijuana states and may be helpful for employers in others.


Below is a quick overview of employer rights and restrictions related to marijuana in the workplace. For a complimentary copy of our white paper on federal and state marijuana employment laws and the court decisions that provide guidance for employers in this area, reply here.





  • Prohibit employees from using marijuana at work or during work hours
  • Prohibit employees from being under the influence of marijuana at work or during work hours
  • Require employees or applicants to undergo drug testing



  • Require employers to make reasonable accommodations for an employees’ off-duty marijuana use
  • Prohibit employers from discriminating against employees based on off-duty marijuana use
  • Impose employer requirements for workplace drug testing policies


Links and Resources

National Conference of State Legislators’ website on state marijuana laws.

Federal drug testing requirements for commercial motor vehicle operators and federal contractors.



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