Is It Legal for My Employer to Drug Test?

This article originally appeared in USA Today's Ask HR on July 28, 2020.

Question: After a six-month job search, I finally found a new job. They gave me an offer, so it’s a done deal – pending a drug test. I’m worried, though, because I did smoke some marijuana three weeks ago and I don’t want this to fall through. Is it legal for employers to drug test? What do I do now? – Anonymous

Johnny C. Taylor, Jr.: Congratulations on your job offer! The short answer is, yes, most employers can lawfully require applicants to pass a drug test before beginning work.  

The landscape surrounding marijuana and the workplace is dynamic and changing quickly. You didn’t say where you live, but it’s important to note while more than 33 states have legalized medical or recreational usage, marijuana remains an illegal substance under federal law.

In turn, there is a patchwork of different employer approaches to drug testing which vary, not only by geography but by industry as well. Some organizations test all new hires, or a subset of new hires. This could include mandatory testing for individuals working in safety-sensitive positions (pilots, drivers, machine operators, etc.). Additionally, some employers with government contracts are required to have drug-free workplace programs that include specific testing procedures for employees.

Before you start your new job, you should review the drug testing laws of the state and city where you’ll be working to determine what, if any, employer actions may result from testing positive for marijuana use. Similarly, I would also consult your prospective employer’s employee handbook or policies. This could shed light, not only your current situation but also whether this company conducts drug screenings of employees, random or otherwise.

Though it sounds like you used it once recreationally, I will add that employer policies can also vary depending on the type of marijuana used. For example, if used for medical reasons, or to manage a disability, employers may be required to consider reasonable accommodations under the Americans with Disabilities Act (ADA). I know that might not be relevant for you, but it may be for others who find themselves in similar straits.

Hopefully, this helps!