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Testing for Marijuana Is Legal… and a Wise Business Decision

Testing for Marijuana Is Legal… and a Wise Business Decision

Blog written by Bill Current and Brian Feeley

This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein. 

Regardless of what you may hear from what seem like credible sources, the legalization of marijuana has led to more people using marijuanai and more of the predictable negative consequences of its increased use, such as marijuana-related traffic accidentsii. However, fewer employers are screening job applicants and employees for marijuana.iii 

More availability of the drug and less accountability for being high at work? That sounds like a recipe for disaster, including more drug-related workplace accidents. According to the 2023 Quest Diagnostics Drug Testing Index, an annual drug testing trends report, “In 2022, post-accident marijuana positive urine drug tests in the general U.S. workforce were up 9% compared to 2021, extending a steady increase in post-accident marijuana positivity over a 10-year period between 2012 to 2022. Following a decline in marijuana positive post-accident test results between 2002 and 2009, marijuana post-accident positives have increased 204.2%.”iv 

The legalization of marijuana has clouded some employers’ judgment, leading them to erroneously believe that it’s not legal to test for marijuana in their state or that it’s not worth the trouble. In a 2023 survey conducted by the Current Consulting Groupv, nearly 14% of employers said they had either discontinued testing for marijuana or were considering doing so within the next 12 months. Fifty-percent of employers said they would do so because testing for marijuana makes it harder to find people to hire and 40% said it was because they were concerned about possible lawsuits or legal liability if they continued testing for pot, even though only 5% indicated that they had actually faced a legal challenge because of testing for marijuana.  

Additionally, 20% of employers said they would drop marijuana from their drug-test panel because testing for marijuana is not permitted in their states or cities of operation. 

Testing for Marijuana Is Legal 

To the contrary, testing for marijuana remains legal in all 50 states, including New York, under limited circumstances. Further, testing for marijuana is required in many states that have voluntary drug testing laws and/or laws that apply to specific industries or occupations.  

And the U.S. Department of Transportation (DOT) still requires covered employers to conduct pre-employment and post-hire testing for marijuana, regardless of the legal status of marijuana at the state level.  

Even when some states place conditions on what employers can do with a positive marijuana test result, they are often careful to exempt specific safety-sensitive occupations from compliance, including first responders, medical professionals, and other people whose actions while impaired by marijuana could cause harm to others. 

In other words, even pro-marijuana lawmakers at the state level acknowledge the ill effects of having marijuana-impaired workers on the job. In fact, some state marijuana laws specifically prohibit employees from coming to work under the influence, bringing marijuana into the workplace, or using marijuana while on the job. 

Drug Testing 

So the most important question really isn’t can you test or should you test for marijuana, but rather, how should you test for marijuana? In some states, the answer to that question has been handed to them on a silver platter. As of January 1, 2024, California no longer allows employers to test job applicants and employees for marijuana using a testing method that only reveals the so-called “non-psychoactive” metabolite of cannabis. In other words, no more urine and hair testing for marijuana because those two methods are only capable of revealing the presence of cannabis metabolites. Oral fluid testing, on the other hand, reveals the presence of parent THC, the drug itself, rather than a metabolite. 

The state of Washington has a similar new law but it only applies to pre-employment testing. Employers there may still use urine or hair tests for reasonable suspicion, post-accident, random, and other post-hire testing circumstances. But when testing job applicants, oral fluid is the only federally approved drug testing method available to Washington employers. 

Oral Fluid Testing 

You may have thought that lab-based urine testing was the only federally endorsed testing method for government-mandated drug tests, such as the DOT drug and alcohol testing regulations. That was true until May 2023, when the DOT issued final regulations for lab-based oral fluid And while those regulations only apply to DOT-covered employers, they can serve as a blueprint for a legally defensible lab-based oral fluid testing program outside of a DOT-mandated workplace. In fact, many parts of DOT’s oral fluid regulations can also be applied to rapid-result oral fluid testing programs, including confirming initial screen positives at a certified laboratory or employing the services of a Medical Review Officer to verify lab-confirmed positive results.  

Oral fluid samples are easier to collect compared to urine samples. No secured restrooms are required, as the collector and donor can be in one another’s presence during the entire collection process. And by utilizing a virtual collection app such as eMed Screen, the donor can be at the workplace or even at home while the collector is in another location all together. Oral fluid collections can take place anytime, anywhere, making oral fluid testing much more convenient for both the collector and the donor.  

Oral fluid tests are capable of detecting many different drugs, including parent THC, rather than the metabolite of cannabis, making them a viable option for employers to use in California and Washington, as well as in most states. 


The National Transportation Safety Board (NTSB) recently issued a report of its findings regarding a hot air balloon crash that occurred in June 2021 in Albuquerque, New Mexico. The balloon crashed into a power line, causing the basket to detach from the envelope and plummet to the ground. Five people, including the pilot, were killed.  

The mayor of Albuquerque said the following at the time: “If you have ballooned, there are always things that can happen, whether it's winds, whether it's equipment. It's something that our pilots always train for, but it's always something that, it can inherently sometimes occur."vii 

Yet, all the training in the world can’t mitigate the risks of workers being high on marijuana while on the job. Two years after the accident, NTSB said that the deadly hot-air balloon crash was, in part, caused by the pilot’s use of cocaine and cannabis.viii The official report stated: “Contributing to the accident was the pilot’s use of impairing, illicit drugs” … “Some impairing effects of THC would likely have been present, that would have affected the pilot’s ability to successfully operate the balloon.” 

Employers are gambling with the lives of their employees, customers, and the general public when they fail to screen job applicants for marijuana. And the truth is, testing for marijuana is legal in all 50 states and only New York prohibits employers from testing applicants for marijuana.  

We know increasing numbers of people are using marijuana and more workers are testing positive for marijuana following workplace accidents. It’s only a matter of time before a marijuana-impaired worker causes a catastrophe in your workplace. Is it really worth that risk when a legal, easy-to-conduct oral fluid drug test before hiring someone or conducted randomly as a deterrent to being at work high could’ve prevented it from happening? 

To learn more about our virtual drug screening services visit our website:


1. Marijuana and hallucinogen use, binge drinking reached historic highs among adults 35 to 50. NIDA. Aug. 2023.,(6%25%20in%202012).
2. Driving while stoned leads to more traffic accidents in a country where marijuana is legal. CNN. Sept. 2023.
3. Drug Testing Industry Survey. Current Consulting Group. May 2023.
4. Quest Diagnostics Drug Testing Index™. May 2023.
5. Drug Testing Industry Survey. Current Consulting Group. May 2023.
6.  Procedures for Transportation Workplace Drug and Alcohol Testing Programs: Addition of Oral Fluid Specimen Testing for Drugs. Federal Register. May 2, 2023.


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