If cannabis is legal do I still have to do a drug test
By Lisa VanWyk May 5, 2023

If Cannabis is Legal Do I Still Have to do a Drug Test?


So, your state has legalized recreational cannabis and that’s really cool.

Lighting up a “fat one” on your day off or enjoying some “special” brownies may be a part of a normal weekend for you.

Perfectly legal and no harm no foul.

If you’re looking for your next job though, it may be a good idea to quit.  You may be asking yourself, “if cannabis is legal, do I still have to do a drug test?”

Even if you are just right for the position and your resume is really rocking, the pre-employment drug test will turn out to be a major downer.

That’s because tests for THC (the active ingredient in marijuana) metabolites can detect traces for over a month beyond your last hit.

This may seem a bit unfair. 

It’s legal, so what’s the problem? 

Is it even legal to test and discriminate in this way?

The “Legalization” of Recreational Cannabis 

 At the last count 19 states plus Washington DC have legalized cannabis for recreational use. These are:

  • Colorado
  • Washington
  • Alaska
  • Oregon
  • Washington, D.C.
  • California
  • Maine
  • Massachusetts
  • Nevada
  • Michigan
  • Vermont
  • Guam
  • Illinois
  • Arizona
  • Montana
  • New Jersey
  • New York
  • Virginia
  • New Mexico
  • Connecticut

Each state has its own restrictions and allowances but in essence you can use a small amount of cannabis for recreational or medical purposes without fear of a knock on the door from the DEA. 

Most states regulate the supply with licensed dispensaries and restrict homegrown supply to three or four mature plants. If you’re caught selling or holding large quantities, you can still expect a hefty prison sentence.

Just Because It’s Legal Doesn’t Mean Its Legal

One big “fly in the ointment” is that cannabis use is still a federal crime. The individual states have gone against the Government’s wishes and there are still circumstances where you can expect substantial jail time for lighting up in front of the FBI!

It’s also important to understand that there’s a long list of occupations and work situations where it’s illegal to be “under the influence” of cannabis whilst at work.

You’ll be happy to know that transportation, safety critical workers and those caring for children must not under any circumstances partake and should probably refrain even on their days off.

It’s reasonable to expect employers to have an outright ban on indulging whilst on company premises.

Is Workplace Cannabis Testing Even Legal?

The quick answer here is “yes”. There’s a lot of talk about the Fourth Amendment but this only protects you from tests by government employers and agents.

If you live in New York City, Philadelphia, or Nevada there’s an outright ban on pre-employment marijuana testing in most industries. However, as you may expect, there are a lot of exceptions for safety critical jobs.

It’s tempting to think that you should be able to use cannabis recreationally without having to worry about what a potential employer may think. 

However, there are a lot of activities that are perfectly legal that may influence an employer’s assessment of your suitability for a particular role. Most of these you can keep to yourself and get the job. 

Like it or not, drug use is still a ‘hot button’ issue for many employers and it’s wise to refrain from the old “Mary Jane” when you are applying for a new position.