Marijuana Drug Testing Policies and the Monitoring of Employees’ Off-Duty Conduct

By: Gregg Zeff
On: October 26, 2021

Marijuana Leaf

What States Legally Allow Recreational Marijuana Use?

Many states have begun to reassess their stances towards the use of recreational marijuana and changed marijuana laws as a result. Many proponents of legalization argue that marijuana use is significantly less dangerous or addictive than other forms of recreational drugs, most notably alcohol. In addition, some studies have indicated a potential medical benefit from the use of marijuana products, including reduction of anxiety and stress, and pain relief. On top of that, many states also view legalization as a means to increase economic revenue while spending less money on enforcing minor drug offenses and subsequent prosecution and imprisonment. Below is a list of states that currently allow recreational marijuana use:


Arizona California









New Jersey

New Mexico

New York


South Dakota*



Washington Washington D.C.

* pending due to a lawsuit

Is Recreational Marijuana Use the Same as Having a Few Beers After Work in the Minds of Employers?

This is a tricky issue for most employees and employers in today’s climate regarding the use of marijuana products. When someone drinks a reasonable amount of alcohol the night before work, it is extremely unlikely that they will still be impaired by the time they show up for their shift. However, marijuana (specifically the active ingredient THC) can linger in the body for a much longer time, even if the person is no longer impaired by the marijuana use. Drug screens by employers can often find traces of THC in a person’s body after 30 days or more since the time of use. In addition, many states can essentially drug test their employees at will, and when combined with THC’s ability to linger in the body, this poses a risk of punishment or the loss of a job for those employees that use marijuana products recreationally. However, because so many states are changing marijuana laws to allow recreational use and the number of users is skyrocketing, many advocates are calling on employers to embrace the culture shift towards recreational use and focus on testing for drugs that are illegal and harmful in comparison.

Party on green

Are There Cases When an Employer can Legally Prohibit Employees from using Marijuana Recreationally?

There are circumstances where an employer can act against an employee for using marijuana recreationally. Although an employer cannot prevent an employee from using recreational marijuana if they choose to do so, many employers operate with ‘zero tolerance policies’ regarding the use of any recreational drug, not just marijuana products. Despite the fact that many states have passed marijuana laws that legalize its recreational use, much of this legislation notes that legalization of marijuana products does not affect an employer’s right to enforce these zero tolerance policies towards drug use in the workplace. In this case, if an employee that has used marijuana recreationally was asked to submit to a drug test per company regulations, they could take a negative action (such as termination) against the employee.

Is it illegal for Employers to Test for Legal Recreational Marijuana Usage?

Generally speaking, in states that have marijuana laws legalizing its use, it is usually legal for employers to request that their employee undergo a drug test or screening. However, it can be tricky for employers to do so, as they generally need to have a reasonable suspicion that the employee’s recreational usage is impacting their work or the employee showed up to a shift in an impaired state. Depending on the state, there are different rules for employers to follow regarding when they are allowed to impose such tests on employees and what steps they may take following a positive test. For example, although employers in New York may do preliminary drug screens for potential hires, they cannot refuse to hire someone based on their usage of recreational marijuana alone. Other states, however, give much more freedom to employers regarding what steps they can take.

Does Employer Marijuana Testing Equate to Monitoring Off-duty Conduct?

Despite new marijuana laws legalizing recreational use, because many employers take zero tolerance stances towards marijuana use, any off-duty use of recreational marijuana that is caught by a drug screening could be looked at as a violation of the terms of employment. Just like drinking alcohol, however, recreational cannabis products are legal in many states, and employers cannot monitor an employee’s off-duty habits. That said, if an employer suspected that their employees’ use of recreational marijuana was impairing their job performance, or if the employee were to show up to work under the influence, action could be taken under the employer’s zero-tolerance policy.

Contact the Zeff Law Firm if your Employer has taken a Negative Action based on Legal Marijuana Usage.

If you have used legal recreational marijuana and your employer has taken negative action against you because of it, contact the employment law attorneys at Zeff Law Firm to schedule a consultation about your case. Due to the complicated nature of recent marijuana laws, employers need to walk a fine line in handling cases of legal recreational use. Our employment law attorneys will help guide you through your state’s legalization guidelines and help you determine whether your employer acted in an illegal fashion.

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