Excerpted from a Fisher Phillips LLP Blog by Todd Logsdon, Lisa Nagele-Piazza and Kristin White
When it comes to testing job candidates and employees for marijuana, employers have a lot to process, especially when you add the growing acceptance and use of cannabis nationwide:
- Most Americans support some form of legalization. Only 11% of US adults say cannabis should not be legal for any purpose, according to a 2026 survey from Pew Research Center. Although the percentage that supports recreational vs. medical has fluctuated a little in recent years, about 88% support it to some degree, and the overall acceptance is significantly higher than when the first states passed recreational laws in 2012.
- More workers are testing positive. For example, pre-employment hair tests show cannabis use increasing by nearly 50% over five years (from 10% in 2021 to 15% in 2025), according to a study released last week by Quest Diagnostics. “Marijuana continues to be the primary driver of positive drug tests across all specimen types and workforce segments,” according to Quest Diagnostics.
“The legal landscape combined with these statistics has a real impact on employers. Many are afraid they won’t be able to meet their hiring needs if they test for cannabis,” says Todd Logsdon, Co-Chair of FP’s Workplace Safety and Catastrophe Practice Group and Partner in the firm’s Louisville office. “They are also concerned about reducing risks in safety-sensitive work environments.”
So, what does this all mean for your workplace? A variety of factors will shape your drug-testing policies, including your industry, location, job types and workplace culture. Here are eight key questions you should consider when developing your policies in light of evolving cannabis laws:
1. Will you continue pre-employment drug screening? Depending on the nature and location of the business and legal prohibitions, employers may opt to drop cannabis from the drug-screening panel. However, state and federal laws may still require that cannabis (specifically THC) be included in drug screening for certain positions, like interstate drivers.
2. Will you create a different policy for safety-sensitive positions? Some employers may opt to eliminate THC – the psychoactive component in cannabis – from pre-employment screening for some roles, such as office jobs, but continue screening for safety-sensitive roles, like forklift drivers and machine operators. Of course, such policies must be applied consistently and comply with applicable state and local requirements.
3. How do you handle cases of reasonable suspicion? Consider developing clear guidelines on how to detect cannabis impairment and what to do when an employee is suspected of working under the influence. Again, be sure that your policies align with workplace safety, drug screening and anti-discrimination laws.
4. Do you have a clear disciplinary policy? What will the consequences be for violating company policy on cannabis use and other policies on having cannabis, cannabis-derived products, or paraphernalia in the workplace?
5. Have you trained managers? Consider training managers and frontline supervisors on how to observe, respond to and report possible on-the-job use of cannabis.
6. How do you handle positive cannabis test results? Do you have an internal process for employees to dispute the results of an investigation or drug test? What steps are in place when a job candidate tests positive? Do you have a plan to explore reasonable accommodations with authorized medical cannabis patients?
7. Do you want to create a single policy that is compliant with all states where you operate or separate policies based on specific state and local rules?
8. Have you consulted legal counsel? Consider having an attorney review your policies and walk you through your options following a positive drug test. It’s best to reach out to counsel before taking any adverse action to ensure you’re complying with all applicable requirements.
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