Marijuana Testing Bill: Law Or Not?

Marijuana laws are constantly changing in the United States. While marijuana remains illegal at the federal level, several states have legalized it for recreational and medical use. As a result, there have been discussions and proposals to amend drug testing policies and laws, especially for employees and job applicants. For instance, California passed Assembly Bill 2188 (AB 2188) in 2022, prohibiting employers from mandating marijuana tests for job applicants or randomly for employees while working. Similarly, the U.S. Department of Transportation (DOT) has amended its drug testing policy to allow oral saliva testing as an alternative to urine tests, which are considered invasive and can show false positives for weeks or months after consumption. In addition, the Marihuana Regulation and Taxation Act (MRTA) was signed into law in New York State in 2021, legalizing adult-use cannabis and creating a new Office of Cannabis Management to regulate adult-use, medical, and hemp cannabis. These developments highlight the evolving nature of marijuana legislation and the ongoing debates surrounding drug testing policies in the U.S.

Marijuana testing for military recruits

The inclusion of this provision in the 2025 NDAA is indicative of a broader trend towards softening barriers to military entry. With recruitment challenges and a large number of young Americans ineligible to serve, military officials and lawmakers are reevaluating policies that may exclude otherwise qualified individuals. This is particularly relevant given the increasing legalization of marijuana for recreational and medical use across the country. As of 2024, 24 states have legalized recreational marijuana, and 38 states permit its use for medical purposes. However, it is essential to note that marijuana remains illegal at the federal level, and past use can still technically disqualify individuals from military service.

The proposed amendment to the NDAA regarding marijuana testing is not an isolated effort. In 2023, Representative Matt Gaetz, R-Fla., filed a similar amendment to the NDAA, stating that prior cannabis use should not exclude Americans from enlisting. Additionally, military branches such as the Air Force, Space Force, Army, Navy, and Marine Corps have implemented pilot programs and waiver policies to address this issue. These initiatives provide recruits who test positive for THC, the primary psychoactive component in marijuana, with opportunities to retest or obtain waivers.

While there is a growing interest in Congress to relax rules surrounding marijuana, it is important to note that these efforts have faced challenges in becoming law. Continued skepticism, particularly within the GOP conference, has hindered the passage of some bills. Nonetheless, the inclusion of the provision in the 2025 NDAA indicates a potential shift in attitudes and increases the likelihood of this policy change becoming law.

The debate surrounding marijuana testing for military recruits is complex and multifaceted. On the one hand, there is a recognition of the changing legal landscape and the potential impact on recruitment. On the other hand, there are concerns about maintaining standards for military service and ensuring the safety and effectiveness of personnel. As the discussion evolves, it remains to be seen whether marijuana testing for military recruits will be entirely eliminated or if alternative approaches, such as retesting and waiver programs, will be favored.

Marijuana testing in California

AB 2188 also protects employees and job applicants from discrimination or penalties based solely on marijuana use outside of work. Employers can no longer refuse to hire, fire, or otherwise discriminate against individuals for marijuana use outside the workplace, unless it can be proven that such use impairs work performance. This bill ensures a fair balance for individuals who use marijuana in their personal time.

In terms of testing laboratories, California's Department of Cannabis Control (DCC) requires all batches of cannabis goods to undergo testing before they can be sold. Licensed laboratories test cannabis products for various factors, including cannabinoid and terpene content, residual solvents, microbial impurities, and moisture content. The test results are reported on a Certificate of Analysis (COA), indicating whether the batch passes or fails.

As of January 1, 2024, the DCC implemented new requirements for testing dried flower cannabis, including the use of standardised cannabinoid test methods and operating procedures. This change was made to address concerns about labelling scams and potency inflation in the cannabis industry. Only labs that comply with these new standards are permitted to conduct regulatory compliance testing for dried flower products.

Marijuana testing for federal employees

In terms of specific testing procedures, the US Department of Transportation (DOT) has finalized a rule to amend its drug testing policy, allowing oral saliva drug testing as an alternative to urine-based tests. This change is intended to reduce false positive results, as THC metabolites can remain detectable in urine for weeks or months after consumption. The new oral testing procedure will have a cutoff of 4 nanograms per milliliter, which is intended to detect recent marijuana use while eliminating the possibility of positive tests resulting from passive exposure.

It is important to note that marijuana testing policies can vary across different federal agencies and departments. For example, the US Forest Service, as a federal agency, is subject to federal regulations prohibiting marijuana use by its employees, regardless of state laws. On the other hand, the Department of Health and Human Services (HHS) has established the scientific and technical guidelines for federal workplace drug testing programs and sets standards for certification of laboratories engaged in drug testing for federal agencies. The HHS publishes mandatory guidelines for federal workplace drug testing programs using urine and oral fluid specimens, which are regularly updated.

Overall, while marijuana testing for federal employees is still strictly regulated, there are ongoing discussions and legislative efforts to relax these requirements, particularly in light of changing societal attitudes and the legalization of marijuana in many states. However, as of now, federal employees are generally prohibited from using marijuana, even in states where it is legal, and can face disciplinary action or loss of employment if they fail a drug test.

Marijuana testing for transport workers

The DOT's new oral fluid testing rule sets a 4-nanogram per milliliter screening test cutoff for THC, eliminating the chances of positive tests from passive exposure. This change aims to improve the effectiveness of drug testing by detecting recent marijuana use while reducing false positives. However, the DOT has made it clear that this change does not indicate a relaxation of its stance on marijuana use by safety-sensitive transportation employees. The department asserts that marijuana remains unacceptable for such employees, and the recent change only aims to improve testing accuracy.

The DOT's drug and alcohol testing regulations continue to cover pilots, truck drivers, school bus drivers, and other transportation workers in safety-sensitive roles. While some states have legalized recreational or medical marijuana use, the DOT's regulated drug testing program remains unchanged. The department has emphasized that "medical marijuana" under state law is not a valid explanation for a positive drug test result for transportation employees. This stance is based on the fact that marijuana is still listed as a Schedule I drug under the Controlled Substances Act.

The debate around marijuana testing for transport workers is complex, with advocates arguing for more lenient policies, especially as more states legalize cannabis. On the other hand, the DOT maintains its focus on ensuring the safest possible transportation system for the public. As a result, transport workers in safety-sensitive roles are still prohibited from using marijuana, and positive drug test results can have consequences for their employment.

While marijuana testing policies continue to evolve, with some states like California passing laws to protect employees and job applicants from discrimination due to marijuana use outside of work, the DOT's recent change primarily aims to improve testing accuracy rather than relax marijuana restrictions for transport workers.

Marijuana testing for federal vs state law

Marijuana is designated as a Schedule I drug under the Controlled Substances Act, meaning it is illegal at the federal level. However, the federal government has taken a hands-off approach as individual states enact and enforce their own laws permitting medicinal and/or recreational marijuana use. As a result, there is a patchwork of differing state laws that employers must navigate when it comes to drug testing policies for their employees.

Federal Law

At the federal level, marijuana is still considered illegal. Some positions, such as certain government roles, may require employers to test for drug use, including marijuana. Additionally, the Americans with Disabilities Act (ADA) prohibits employers from discriminating against individuals with disabilities but specifies that this does not include employees who are currently engaging in the illegal use of drugs like marijuana. Federal agencies such as the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the Secret Service have recently relaxed restrictions on marijuana use by prospective employees.

State Laws

Many states have legalized marijuana for medical and/or recreational use, creating a complex landscape for employers. For example, California passed Assembly Bill 2188 (AB 2188) in 2022, which prohibits employers from requiring drug tests for marijuana use for job applicants or randomly for current employees. New York and New Jersey have similar laws prohibiting employers from discriminating against employees for marijuana use outside of work hours.

On the other hand, some states like Texas have no restrictions on employee marijuana testing, while others fall somewhere in between. For instance, in Pennsylvania, employers must accommodate impairment from medical marijuana use unless the employee's conduct falls below the standard of care for their position.

Implications

The inconsistencies between federal and state laws have made it challenging for employers to implement consistent drug testing policies. Employers must be mindful of the laws in each state where they have employees and consult legal counsel to ensure their policies are compliant. While some multi-state employers have chosen to abandon marijuana testing altogether, those who wish to continue must carefully navigate the legal landscape, especially as marijuana legalization and decriminalization become the new norm.

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