Every new year brings changes to marijuana laws. While the federal law has not changed its classification of marijuana as a Schedule 1 substance, Ohio, Minnesota and Delaware have recently legalized recreational marijuana.
As other states consider new legislation, Paycor will keep this article updated with any further changes to help you stay compliant.
With so many states (38 at last count) legalizing medical and/or recreational marijuana, the pros and cons of drug or alcohol testing job applicants has become something of a hot topic. Over the past five years, marijuana positivity has increased 45.2% according to Quest Diagnostics’ annual analysis of workforce drug tests.
The question you might be grappling with is: Do I really want to limit my talent pool by requiring that every prospective employee be tested? Because you can’t pick and choose; if you have a drug testing policy, it has to apply to all applicants. Check out our table for a high-level overview of state laws on pre-employment drug testing.
State-by-State Pre-Employment Drug Testing Laws 2024
Note: The table below outlines which employers have the right to drug test employees. It does not mean they are required to do so. For example, Alabama lists “all” for covered employers. That means any employer can choose to participate in the drug-free workplace program and receive a discount on workers’ compensation insurance. Participating workplaces must drug test potential employees. This program is voluntary. N/A simply means there’s no applicable law, but employers can still choose to drug test employees.
| State | Covered Employers | Provisions | Medical or Recreational Marijuana Legal |
|---|---|---|---|
| Alabama | All | Testing permitted after applicant receives drug-testing policy and a conditional employment offer. | Medical |
| Alaska | All employers, including school districts or regional educational attendance areas. | Testing permitted after applicant receives written policy. Positive results or refusal may be grounds for not hiring. | Medical and Recreational |
| Arizona | All | Testing permitted after applicant receives drug testing policy. Refusal to submit to a drug test can be basis for not hiring. | Medical and Recreational |
| Arkansas | All | Testing permitted after applicant receives drug-testing policy and a conditional employment offer. | Medical |
| California | All, but California law prohibits discrimination against applicants and employees for their cannabis use when off-site or off-duty. | Testing permitted as a condition of employment after a job offer is made but before the employee begins working. | Medical and Recreational |
| Colorado | N/A | No state laws; follows federal law where required. | Medical and Recreational |
| Connecticut | All private employers as well as state correction officers, police, and certain other high-risk executive branch jobs. | Testing permitted after applicant receives drug-testing policy. Cannot test former employees unless they have been gone for at least 12 months. Employers in the following industries can claim exemptions: mining; utilities; construction; manufacturing; transportation or delivery; educational services; healthcare or social services; justice, public order and safety activities; and national security and international affairs. | Medical and Recreational |
| Delaware | Required for safety, security sensitive, child care, home health and nursing home positions. | Employers cannot hire or employ someone in the required fields without first obtaining the results of their mandatory drug screening. | Medical and Recreational |
| District of Columbia | Safety-sensitive positions. | Excluding safety-sensitive positions, employers can only test for marijuana if a conditional employment offer is extended. | Medical and Recreational |
| Florida | All | Testing permitted after applicant receives drug testing policy. Refusal to submit to a drug test can be basis for not hiring. | Medical |
| Georgia | All | Testing only allowed after extending a conditional offer, except in the case of high-risk jobs. | N/A |
| Hawaii | All employers | Testing permitted after applicant receives drug testing policy and has opportunity to disclose current prescription and nonprescription drugs being taken. Testing required for civil service applicants with city of Honolulu. | Medical |
| Idaho | All employers | Testing permitted. | N/A |
| Illinois | All | Illinois state law does not prohibit drug testing. | Medical and Recreational |
| Indiana | N/A | No state laws; follows federal law where required. | N/A |
| Iowa | Public and private employers | Testing permitted if applicant is informed at the time of application that a drug test is required. Ads and applications must carry notice of drug test. | N/A |
| Kansas | All | Testing permitted for applicants to safety-sensitive jobs after a job offer has been made. Ads for safety-sensitive jobs must carry notice of drug test. | N/A |
| Kentucky | All | Testing permitted after a conditional employment offer is made. | N/A |
| Louisiana | All | Testing must be conducted in certified labs. | Medical |
| Maine | All | Testing permitted after a conditional employment offer is made. | Medical and Recreational |
| Maryland | All | Testing must be conducted in certain labs. | N/A |
| Massachusetts | N/A | No state laws; follows federal law where required. | Medical and Recreational |
| Michigan | Public employers | Pre-employment drug screens cannot test for marijuana, except for safety-sensitive positions. | Medical and Recreational |
| Minnesota | Public and private employers | Testing permitted after applicant receives drug-testing policy and a conditional employment offer and only if all job candidates are tested. | Medical and Recreational |
| Mississippi | Public and private employers | Must provide a written drug testing policy prior to testing. | Medical |
| Missouri | N/A | No state laws; follows federal law where required. | Medical |
| Montana | All | Testing permitted as a condition of hire. | Medical and Recreational |
| Nebraska | Private employers with six or more employees and public employers | Testing not restricted. | N/A |
| Nevada | All | Cannot refuse to hire a candidate based on a screening test that detects marijuana, except for safety-related jobs. | Medical and Recreational |
| New Hampshire | N/A | No state laws; follows federal law where required. | Medical |
| New Jersey | All | Testing permitted, but employers cannot refuse to hire any person because they do (or do not) use cannabis products outside of work. | Medical and Recreational |
| New Mexico | N/A | Employers permitted to implement and maintain zero-tolerance drug testing programs, including the testing of marijuana. | Medical and Recreational |
| New York | N/A | New York City bans pre-employment screening for marijuana use except for safety and security sensitive jobs and jobs bound by a federal or state contract or grant. | Medical and Recreational |
| North Carolina | Public and private employers | Testing not restricted. | N/A |
| North Dakota | N/A | No state laws; follows federal law where required. | Medical |
| Ohio | All | Applicant testing is required for employers participating in the state’s drug-free safety program, which provides the employer with rebates. | Medical and Recreational |
| Oklahoma | Public and private employers | Applicant testing authorized with advance notice to applicant and after offer of employment has been made. Notice must be in writing, describing methods, procedures, and policies in detail. | Medical |
| Oregon | All | Testing permitted if reasonable suspicion exists that applicant is under the influence of alcohol or controlled substance. | Medical and Recreational |
| Pennsylvania | N/A | No state laws; follows federal law where required. | Medical |
| Rhode Island | Public and private employers | Private sector applicant testing permitted only after offer of employment has been made. Public sector testing permitted for jobs involving public safety or when required by federal law. | Medical |
| South Carolina | All employers S.C. Code § 1-13-30. | Testing not restricted. | N/A |
| South Dakota | State government | While any employer can choose to drug test, some safety- sensitive state jobs mandate testing. Public announcements and ads must carry notice of drug testing requirements. | Medical |
| Tennessee | State Dept. of Corrections | Testing not restricted. | N/A |
| Texas | N/A | No state laws; follows federal law where required. | N/A |
| Utah | Private employers, local government entities, and state institutions of higher education | Testing not restricted in the private sector. Local governments and state colleges can test applicants with advance notice and a written policy. Refusal to submit to a drug test or a positive test result can be basis for not hiring. | Medical |
| Vermont | Public and private employers | Testing authorized with advance written notice to applicant, after conditional offer of employment has been made, and if test is part of pre-employment physical. | Medical and Recreational |
| Virginia | N/A | Testing permitted but employers are prohibited from discharging, disciplining, or discriminating against an employee’s lawful use of cannabis oil according to a valid written certification issued by a practitioner for the treatment or to eliminate the symptoms of the employee’s diagnosed condition or disease. | Medical and Recreational |
| Washington | Private employers seeking to qualify for a 5% workers’ comp. premium discount, with approval by state authorities. | Testing authorized with advance written notice and after conditional offer of employment has been made. | Medical and Recreational |
| West Virginia | N/A | No state laws; follows federal law where required. | Medical |
| Wisconsin | N/A | No state laws; follows federal law where required. | N/A |
| Wyoming | N/A | No state laws; follows federal law where required. | N/A |
Federal Drug Testing Laws
Job applicants or employees in positions such as airline pilots, bus drivers, railroad employees, taxi drivers, and truck drivers are regulated by the Department of Transportation and must comply with federal laws, which require applicants to take and pass a pre-employment urine test. If a person in one of these positions is ever in an accident on the job, they will also be required to take a post-accident drug test.
The Department of Defense (DOD) created drug testing laws for contractors who work in positions responsible for national security, Drug-Free Workplace, 42 Code of Federal Regulations (CFR) 223.5. To comply with the rules, every DOD contractor who has any type of security clearance or access to classified information must have a drug-free workplace policy that includes:
- An employee assistance plan (EAP) that coordinates with local resources such as a drug rehab facility
- A stipulation that an employee can self-refer and that supervisors also can refer for drug abuse treatment
- Training for supervisors to help them understand how to detect and respond to illegal drug use
- A formal and supervised employee drug testing policy
DOD rules also require contractors to confirm that drug testing policies are in compliance with applicable state laws and also ensure that all labor unions have agreed to the policies.
With a few exceptions (e.g., companies that are awarded federal contracts), private businesses aren’t mandated to test job applicants who make it to the hiring stage, but many do because they receive a discount on their workers’ compensation insurance.
Why Compliance Matters
Employers who fail to adhere to state or federal drug testing laws may face significant legal consequences, including fines, penalties, and potential lawsuits from employees. Non-compliance can result in the loss of workers’ compensation insurance discounts or federal contracts.
In some cases, violating drug testing laws may also lead to claims of discrimination or wrongful termination if employees believe they were unjustly subjected to or penalized for drug tests. Employers should ensure their drug testing policies are legally compliant and consistently applied to avoid legal risks.
The “Just Say No” Era
The majority of today’s drug testing mindset dates back to the Reagan administration, when many companies implemented “drug-free workplace” policies under the United States government’s Drug-Free Workplace Act of 1988. The Act essentially says any company that gets federal contracts or grants must be a drug-free workplace, or it could lose its federal funding. Pre-employment testing is a key part of the policy.
There’s no question that alcohol and drug use among certain professions can be a dangerous proposition. It can affect judgment and concentration and may put companies at risk for a lawsuit. The National Council on Alcoholism and Drug Dependence estimates that employee use of drugs and alcohol has resulted in annual losses of $81 billion. According to Executive Order 12564, federal employees who are involved in national security, law enforcement, protecting life and property, and public health are subject to mandatory drug testing.
Of course, state laws vary when it comes to conducting a test for drugs or alcohol in the workplace or as a pre-employment screening (which is why we created our easy-reference table).
Types of Drug Tests
Drug testing is typically conducted prior to tendering an offer of employment. A failed drug test could result in the job offer being withdrawn. Pre-employment drug tests typically scan for six substances:
- Amphetamines (speed, crank, meth)
- Ecstasy
- THC (marijuana, hash)
- Cocaine (crack)
- Opiates (codeine, morphine, heroin)
- PCP (angel dust)
Pre-employment Drug Tests and the Constitution
An employer’s test typically doesn’t violate an applicant’s rights, but the way the test was carried out (or how its results are used) can sometimes be a bit of a gray area. The U.S. Supreme Court has ruled that wholesale drug tests with no specific motivation for suspicion are unconstitutional. They also ruled that the results of an applicant or employee testing positive can’t be used in future criminal cases without the person’s consent. And a test can be challenged on constitutional grounds if the results are indiscriminately revealed or if testing is excessive or otherwise inappropriate. So, it’s easy to see why many employers are abandoning applicant drug testing altogether.
Mitigate Risk with Technology + Expertise
Paycor Recruiting is the simple, smart, safe recruiting platform built by recruiters for recruiters and HR hiring teams. Build candidate pipelines, create branded career pages, customize job applications and find great candidates, all while remaining compliant. At Paycor we offer more than best-in-class technology, we pride ourselves on our expertise. When businesses partner with Paycor they get immediate access to a team of dedicated tax and compliance experts who help them remain compliant throughout the entire employee lifecycle. Want to learn more? Take a product tour today.
The information provided in our chart is for educational purposes only; it is not legal advice. Always check regulations to help ensure compliance.