Construction Law: New Marijuana Laws

How They May Affect Drug Testing

by Gabriel Pinilla, Cotney Attorneys & Consultants









(Editor’s Note: Gabriel Pinilla is the managing partner of Cotney Attorneys and Consultants’ Denver, Colorado, office. He is a seasoned, results-oriented business and construction law and litigation attorney. Pinilla’s practice encompasses state and federal court litigation from pre-trial through the appeals process, as well as serving clients with negotiation and transactional needs. For more information, go to


Marijuana laws in many states are rapidly changing, which could impact how employers can most effectively drug-test their employees.

What the Laws Say

At present, 18 states and Washington, D.C., have legalized at least some form of adult marijuana use. Within some of these state laws are provisions that protect the use of marijuana by job applicants. For example, in 2019, Nevada made it illegal for employers to refuse to hire applicants based on testing positive for marijuana, however, there are exceptions for specific job roles. In 2021, two other states passed similar laws. In New Jersey, employers are prohibited from refusing to hire or take negative actions against employees based on marijuana use. In New York, employers are not allowed to discriminate against employees who use cannabis before or after work hours, off the worksite, and while not using employer’s equipment.

In addition, in July 2021, Senate Majority Leader Chuck Schumer (D-NY), Sen. Ron Wyden (D-OR), and Sen. Cory Booker (D-NJ) introduced an initial draft of what is being called the Cannabis Administration and Opportunity Act. If enacted, this legislation would put an end to federal cannabis prohibition.


How Employers Are Reacting

In June 2021, Amazon announced it would no longer include marijuana in its drug-testing program, except for jobs subject to United States Department of Transportation regulations. Instead, the company plans to regard employees’ marijuana use as it does their use of alcohol. Similarly, after Virginia passed its recreational marijuana use law in 2021, the city of Norfolk stopped its drug-testing program, making exceptions for only particular safety-sensitive job positions.


What the Future May Hold

As these and other companies and municipalities change their approaches to drug testing, more employers may follow. Off-duty marijuana use could become more accepted nationwide, so it may be difficult for employers to have a no-tolerance policy. Nevertheless, drug testing is not likely to go away entirely. Employers will still need to screen workers in specific roles. In addition, many industries will find it necessary to explicitly state that employees are never to be under the influence of marijuana, alcohol, or any other drugs for any part of their working time or when present at any employment facility or work site.


How You Can Tackle This Issue

Given the new drug laws throughout the United States, this is a good time to take a look at your state laws and make sure you understand how they pertain to your employees. With that information in hand, review your drug-testing policies and update them appropriately for your business. You may prohibit only on-the-clock drug use, or you may choose to take a stricter stance. You may discontinue drug testing for some roles but continue it for others.

For many industries, including construction, manufacturing, and transportation, safety is paramount, so any impairment at work could result in serious accidents or death. In these or similar industries, it is important that your policies reflect the needs and priorities of your business. You will also want to ensure that supervisors are trained to identify the signs of impairment among your employees and take appropriate action.

If you want more information on how to decipher the current drug laws and determine how they impact your business, do not hesitate to consult legal counsel. Experienced employment attorneys can offer sound advice and help you understand what your options are. Their knowledge can assist you in protecting your company, as well as your workers.