Decline to hire based on drug test? Best to follow your state’s laws

Q           Can we deny someone employment based on their preemployment drug screen test that was positive for cannabis if cannabis is legal in our state?

Likely, no. But the decision is ultimately influenced by state law regarding cannabis use and workplace drug testing. Federal law may also play a role if you’re a federal contractor or receive federal grants. Additionally, the nature of the work can influence whether to hire an applicant who tests positive for cannabis, even if use is legal.

First, federal law may affect prospective employee screening. Although the Drug-Free Workplace Act of 1988 doesn’t require you to complete drug testing, it does require certain federal contractors and all federal grantees to provide a drug-free workplace as a precondition to receive federal contracts or grants. The Act defines cannabis as a “controlled substance.”

Second, the legal landscape regarding cannabis use is evolving among states. Some states permit cannabis use only for medicinal purposes, while others permit medicinal and recreational use. State laws affect your obligations to accommodate medical use and may also prohibit you from taking adverse action against employees who use cannabis recreationally outside work time.