(This column originally appeared in the Philadelphia Inquirer)
Cannabis is seemingly everywhere. Is it in the workplace?
More than 64 million Americans over the age of 12 used marijuana in 2024, a 19% increase since 2021, according to a recent report from the U.S. Department of Health. And while cannabis is restricted to medical use in Pennsylvania, customers can now easily purchase these products over the bridge at more than 300 shops in New Jersey, where state law allows recreational use.
Currently, cannabis is classified as a Schedule I controlled substance by the federal government. But an active effort to move it to the less restricted Schedule III classification is underway. If that happens, cannabis use will likely become even more common.
All of this is having an impact on employers’ drug policies. Given its widespread use, and predicted growth in popularity, should cannabis be included in the testing and screening of employees at all?
Should employment drug screens include cannabis?
Some experts, like Marissa Mastroianni, an employment attorney at Cole Schotz in Hackensack, think not.
“In most cases I recommend clients drop cannabis from their testing and screening in light of the employment protections being passed for cannabis users across the country and particularly New Jersey,” she said.
New Jersey’s Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization (CREAMM) Act passed in 2021 and provides employment protections for workers as a result of the state’s legalization of adult-use cannabis.
“I see many employers simply dropping cannabis from their standard drug testing panels unless federal law, industry rules, or a safety-sensitive job requires it,” Mastroianni said. One of the big reasons, she points out, is that cannabis, unlike alcohol, can remain in your bloodstream for many days after it’s been consumed.
“In both Pennsylvania and New Jersey, the old blanket zero-tolerance approach just doesn’t work anymore,” she said. “The focus has shifted — it is no longer about whether someone uses cannabis at all, but whether they are actually impaired at work.”
A changing process for drug testing
Drug testing, depending on the company and its industry, is still very common, and for good reason. But the process is changing.
“Reasonable-suspicion testing, where a supervisor sees actual signs of impairment, is really the most defensible and practical approach right now,” said Mastroianni. ”Random testing is best saved for safety-sensitive positions or jobs where federal regulations require it, like Department of Transportation-regulated roles.”
Employers must be careful when requiring testing, said Marjorie Obod, co-chair of the labor and employment practice at Philadelphia law firm Dilworth Paxson.
“Because Pennsylvania recognizes medical marijuana it prohibits employers from discriminating against somebody based on its use,” she said. Occupational Health and Safety Administration (OSHA) rules say employers “can’t just go drug test everybody.”
So, Obod said, “if there’s an incident, you’ve got to have some proof that the drug abuse had something to do with the incident.”
To minimize potential discrepancies, Obod recommends that a company’s screening and testing policies include “at least two people, not just one person claiming that the person needs to get tested.”
Reporting incidents
A good policy must also address how to handle drug-related incidents. I learned this recently when visiting a manufacturing client, where one employee arrived at work under the influence of opiates and had a violent reaction on the factory floor. Luckily, the client had a medical kit on hand that included the drug Narcan.
The employee was ultimately fine. My client, having seen this before, had a strict protocol. He said keeping medical supplies handy and providing training for all workers on how to identify and address a potential substance abuse issue has been important.
“All employees should be on the lookout for suspected drug or alcohol impairments,” Mastroianni said. “When an incident occurs it should be documented in writing with all reports going to a designated point of contact — like an HR professional or safety officer — and grounded in what someone actually observed like slurred speech, or unsteady body movements.”
Obod said it’s important to have “a clear, written reporting protocol” so employees can flag suspected impairment without worrying about retaliation.
“If there’s an incident, you’ve got to have some proof that the drug abuse had something to do with the incident,” she said.
Your cannabis policy is your policy
Some businesses, particularly those that handle hazardous materials or are engaged in higher-risk work, will create drug policies in keeping with stringent regulatory rules.
But for the most part, as long as you’re in compliance with both federal law and state laws, which differ in Pennsylvania or New Jersey, you’ll be free to determine the extent of cannabis testing and screening requirements you want to include. Considering the changing complexity of this issue, it’s critical to have an expert, such as an HR professional or employment attorney, perform regular reviews of your company’s drug policies.
“You have OSHA, you have the Americans with Disabilities Act, you have privacy issues, you have governmental, federal law, state, you have all of these things,” said Obod. “If you’re not talking to a lawyer, you may not recognize that your drug policies are not in compliance.”
