When it comes to marijuana legalization, federal and state laws remain largely at odds. This infographic highlights federal and state legislation that may affect employers who test employees or job applicants for marijuana use.

Federal Laws

The following federal legislation applies to marijuana use and testing:

The Controlled Substances Act (CSA) is a federal law that prohibits the possession, manufacturing and transferring of several intoxicating substances, all categorized into five “schedules” based on their acceptable medical use and dependency potential. Marijuana is classified as a Schedule I substance, which means it is considered to have a high po- tential for abuse and lacks accepted medical applications. All uses of Schedule I substances are illegal under the CSA.

The Food, Drug and Cosmetic Act prohibits the use, dis- pensation and licensure of substances that have not been approved by the U.S. Food and Drug Administration. This includes marijuana.

Title VII of the federal Civil Right Act (Title VII) allows employers to establish policies against employing any indi- viduals who currently and knowingly possess or use certain controlled substances, such as marijuana. However, Title VII does not permit employers to adopt or apply these policies with the intent to discriminate against individuals based on race, color, religion, national origin or sex.

The Americans with Disabilities Act requires employers to provide reasonable accommodations for individuals with disabilities but specifically excludes addiction to drugs that are illegal under federal law, such as marijuana, from its definition of a disability.

The federal Farm Bill of 2008 essentially legalized cannabidiol (CBD), a derivative of marijuana that does not produce psychoactive effects in users, throughout the United States.

Despite such legislation, employers should generally avoid solely relying on federal laws to justify any adverse actions against employees who test positive for marijuana. Instead, employers should carefully review all applicable state and local laws before deciding how to deal with these issues.

State Laws

State and local laws related to marijuana use and testing generally fall into one of these categories:

Recreational and medical—This category’s laws cover states that allow individuals age 21 and older to use marijuana for recreational pur- poses. Each of these states also has separate laws governing the use of marijuana for medical purposes.

Medical only—The laws in this category pertain to states that allow the use of marijuana for medical purposes but do not allow any recre- ational use of the substance. Medical marijuana laws generally underlie most employment-related disputes involving the drug.

CBD only—Technically, the laws in this category do not apply to legalized marijuana for purposes of workplace drug testing. Rather, this category’s laws cover states that allow limited use of CBD, which is usually administered in oil form and rarely shows up on tests for marijuana.

This Bulletin is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice. Design ©2023 Zywave, Inc. All rights reserved.