The Legalization of Marijuana and Employer Obligations

by Willmary Escoto 29 Aug. 2019


The evolution of the cannabis industry and its state by state legalization has created a fog of uncertainty for employers. On June 5th, Nevada passed a law  that explicitly prohibits employers from refusing to hire a job applicant for failing a cannabis screening test; the law goes into effect on January 1, 2020. New York passed a bill this April prohibiting employers from requiring job applicants to pass a cannabis screening test. Most recently, Illinois became the 11th state to legalize recreational cannabis and the first state to pass a bill, the Illinois Cannabis Regulation and Tax Act (Cannabis Act), allowing for the sale and possession of Cannabis.  

As acceptance of the cannabis industry grows and more states adopt the progressive trend of legalization, new workplace health and safety challenges emerge for employers and employees.


willmary america cannabis map


The global legal cannabis industry is projected to reach USD 40.6 billion by the end of 2024, according to cannabis growth projections entitled “State of the Legal Cannabis Markets” from Arcview Market Research and BDS Analytics. Companies operating in pro-cannabis states should expect to see an escalation in cannabis use as the industry grows. It is critical for companies to learn the nuances in the rapidly evolving state-by-state pro-cannabis legislation, which places a higher burden on companies to justify “zero tolerance” drug policy approaches, in order to protect the companies from any liability. Consequently, companies should familiarize themselves with pro-cannabis legislation in states where they operate and monitor for any regulatory developments. Companies should identify any requirements under the law to reasonably accommodate employees who use cannabis.

In states with pro-cannabis legislation, companies will need to adjust to a new culture of acceptance and learn how to proactively attract highly talented employees from a diverse demographic. Retention is equally as important. Finally, companies should educate themselves on the unreliability of marijuana drug testing. Most companies use outdated methods of urinalysis as their primary approach in drug screening because it is quick and inexpensive. Urine screenings detects THC, the chemical that produces marijuana’s psychoactive effects. The problem is, THC can remain in the body for weeks, even months. As a result, companies should be wary of depending on outdated and unreliable urinalysis testing because it does not confirm on-the-job impairment.

Companies should be proactive and reconsider existing drug policies (particularly in the construction, manufacturing, and automotive sectors where safety is a serious concern) and be open to modernizing their strategy for screening job candidates. In order to keep ahead of these regulatory changes and to avoid any future liabilities, companies need to develop and enforce robust policies that harmonize conflicting federal and state laws, while adequately protecting employees’ rights and ensuring accident-free work environments.