How do federal laws and regulations treat marijuana?
Marijuana remains federally regulated under the Controlled Substances Act. In April 2026, the U.S. Department of Justice and Drug Enforcement Administration published a final rule changing the scheduling of certain FDA-approved drug products containing marijuana and certain products subject to qualifying state medical marijuana licenses.
The rule didn’t broadly reschedule marijuana. Marijuana outside the scope of the rule generally remains a Schedule I controlled substance and is therefore prohibited under federal law.
When addressing workplace marijuana-related issues, employers should:
- Review the final rule/order
- Comply with all applicable laws
- Consult legal counsel as needed
U.S. Department of Transportation (DOT) regulations
The DOT has stated that its drug-testing rules for safety-sensitive transportation employees remain unchanged unless and until the agency provides additional guidance or amends its regulations. Therefore, DOT-regulated employers must continue testing covered safety-sensitive employees for marijuana and must follow all applicable removal-from-duty and return-to-duty requirements.
If an employee receives a verified positive DOT drug-test result for marijuana, the employer must immediately remove the employee from safety-sensitive duties. The employee may not return to those duties until the employee has been evaluated by a substance abuse professional, completed the required education or treatment, and received a negative return-to-duty test result. These requirements apply even in jurisdictions that permit medical or recreational marijuana use.
Which states currently have approved laws that allow medical and/or recreational marijuana use?
Medical Marijuana Laws
Most states and the District of Columbia allow some form of medical marijuana use, and the scope of state laws varies significantly.
Recreational Marijuana Laws
A growing number of states also allow recreational marijuana use outside of work hours.
States continue to pass and amend marijuana-related laws. Check whether your state laws allow medical marijuana and/or recreational marijuana use.
My state allows recreational marijuana. Do I have to allow employees to use it at work?
State marijuana laws generally don’t require employers to allow employees to use recreational marijuana at work or work while impaired. Employers may also generally prohibit recreational marijuana possession and use during working time and on company property.
For instance, even if your company allows employees to smoke cigarettes during rest breaks outside, it may prohibit recreational marijuana use during working time or on company property, just as it may prohibit workplace alcohol use.
In your drug-free policy, clearly address the possession, use, sale, distribution, and impairment associated with marijuana and other controlled substances during working time and on company property. The policy should also explain any testing requirements, off-duty-conduct restrictions permitted by applicable law, reasonable-accommodation procedures, and exceptions required by federal, state, or local law.
Can I prohibit employees from using recreational marijuana while off-duty? Are there any exceptions?
Some state laws have express protections for off-duty recreational marijuana use, so long as the employee doesn't report to work impaired. The following are abbreviated examples and shouldn’t be considered comprehensive summaries of state law:
State |
Examples of Protected Off-Duty Marijuana Use |
|
Connecticut |
Connecticut generally prohibits employers from taking adverse action against an employee because they use recreational marijuana outside the workplace (unless the employment action is made pursuant to a written policy that was provided to employees and applicants that prohibits recreational marijuana possession, use, or other consumption by an employee). |
|
Montana |
Montana generally prohibits an employer from refusing to employ or discriminating against an individual because they legally use a lawful product (including marijuana) off the employer's premises during nonworking hours. |
|
Nevada |
Nevada generally prohibits employers from refusing to hire a prospective employee because they submitted to a drug test and the results indicate the presence of marijuana. |
|
New York |
New York enacted legislation that legalizes recreational marijuana use and generally prohibits employers from taking adverse action against employees or who legally use or possess marijuana products during nonworking hours or while they are outside the workplace. |
Notably, many of these laws include various exceptions, such as exemptions for certain employers and positions. If you operate in a state that permits recreational marijuana, make sure you understand and comply with applicable employment protections.
Keep in mind that separate employment protections may apply to qualifying medical-marijuana patients. In addition, use away from work may be protected by privacy, off-duty conduct, or other laws.
Given the complexity of these laws, consider consulting legal counsel to discuss your rights and obligations.
If I believe an employee is impaired by recreational marijuana at work, what are my options?
If an employee appears impaired while working, an employer may generally take action consistent with its policy and applicable law, potentially including termination. Before acting, document objective observations, follow any required reasonable-suspicion or testing procedures, consider whether disability-accommodation obligations may apply, and ensure your policy is enforced fairly and consistently. A positive marijuana test may indicate prior use but may not, by itself, establish current impairment under the law.
My company has previously required pre-employment drug tests. If my state now allows recreational marijuana, can I still test for marijuana?
Depending on your state and local jurisdiction, you may be prohibited from performing pre-employment testing for marijuana or prohibited from taking adverse action based solely on the results. For example, the state of New York generally restricts cannabis testing unless an applicable statutory exception or other law permits or requires it. Separately, New York City prohibits employers from conducting pre-employment testing for marijuana, absent an exception for certain positions. Check your state and local laws for details.
What are some considerations to help comply with state and local drug testing laws?
As more jurisdictions legalize the medical and/or recreational use of cannabis, an employer's burden to stay on top of the changes and comply with state and local laws may increase (especially when operating in multiple locations).
Accommodating Medical Marijuana Use
Some states provide employment protections for registered medical-marijuana patients and/or require employers to consider reasonable accommodations related to an employee’s underlying medical condition or authorized medical-marijuana use. These requirements generally don’t require an employer to permit marijuana use or impairment during working time, and exceptions may apply to safety-sensitive or federally regulated positions.
Best Practice
Check your state and local laws and consider consulting legal counsel to help comply with workplace accommodations, testing, and state privacy requirements.
Conclusion
Employment protections for medical and recreational marijuana continue to evolve, with court cases regularly testing the scope of worker protections. Check all applicable laws and work closely with legal counsel to determine your rights and responsibilities.
