Marijuana laws are changing fast, which has left employers navigating new compliance challenges and legal gray areas. If you’re finding it difficult to keep up, you’re not alone. This article breaks down the latest cannabis updates to help you stay compliant with your hiring and screening policies.
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Texas: State Expands Medical Marijuana Eligibility
The Texas legislature recently expanded the state’s medical marijuana program to include more qualifying conditions. Starting Sept. 1, Texas residents can get medical marijuana prescriptions if they have:
- Chronic pain
- Traumatic brain injuries
- Crohn’s disease or other inflammatory bowel diseases
- Terminal illnesses or other conditions requiring hospice or palliative care
The revised law also adds more dispensaries and makes additional cannabis products, such as lotions and vapes, legal for medical use.
What Texas Employers Need to Know
The bottom line: More people in Texas will soon qualify for medical marijuana prescriptions. However, the law doesn’t include employment protections. Texas businesses can continue to use drug testing for hiring decisions.
Additionally, some positions, including roles regulated by the U.S. Department of Transportation (DOT), will still require drug screening.
Before the changes go into effect in September, we recommend taking these steps:
- Clarify your drug screening policy. If you currently screen new hires or employees for cannabis, consider whether it makes sense to continue this testing. Either way, apply your screening policy consistently to avoid potential legal challenges.
- Take adverse action carefully. Be careful when taking adverse action against an applicant or an employee who has a legal prescription for medical marijuana. It’s best to get legal counsel before taking adverse action, such as denying or terminating employment.
Pennsylvania: Another Push for Recreational Marijuana is Likely
While a bill to legalize recreational marijuana failed in Pennsylvania this spring, don’t expect the issue to disappear completely.
In May, a state Senate committee voted down the legislation, which would have legalized recreational marijuana use for adults 21 and older. However, the bill largely failed because of disagreement about the proposed state-run model, not because of overwhelming opposition to legalization.
Already, lawmakers have introduced new bills aimed at legalizing recreational marijuana use in Pennsylvania.
What Pennsylvania Employers Need to Know
Even if Pennsylvania doesn’t pass a recreational marijuana bill this year, the debate will likely continue. Being proactive now can potentially save you some time (and headaches) down the road.
Consider taking these steps to prepare for potential legalization:
- Review your drug testing policy. Decide whether you plan to continue testing for cannabis if recreational marijuana becomes legal. Keep in mind that marijuana can remain detectable in drug tests long after use.
- Train managers. If marijuana usage becomes legal for adults, employers may still have the right to test employees for suspected impairment during work hours. Train managers on how to spot the signs of impairment.
- Stay up-to-date on legal changes. As new legislation gets proposed, make sure your team stays up-to-date on possible changes and state compliance requirements.
Read more in our guide: An Employer Guide to Understanding Pre-Employment Drug Screening
Pennsylvania: Court Sides with Medical Marijuana Cardholder in Employment Case
A Pennsylvania court has allowed a medical marijuana discrimination suit to move forward. This case is a good reminder to proceed carefully with hiring decisions involving protected medical marijuana usage.
In Tyler v. Penske Truck Leasing Co., the plaintiff argued that the truck leasing company rescinded a conditional job offer after he disclosed a medical marijuana prescription for an anxiety disorder. The applicant alleged a recruiter told him the company “can’t accommodate your medical marijuana card.”
The company argued the decision was lawful, but the court denied its motion to dismiss. Specifically, the court noted that the job, a sales and operations management trainee role, wasn’t subject to federal DOT regulations for drug testing.
What Pennsylvania Employers Need to Know
While this case is ongoing, it offers some insights for Pennsylvania employers and businesses in other states with medical marijuana protections.
Here’s what you can do to stay compliant with these regulations:
- Know the laws in your area. For example, Pennsylvania prohibits employment discrimination against applicants or employees with medical marijuana prescriptions. There are exceptions for safety-sensitive roles and positions regulated by federal laws.
- Evaluate job duties before drug testing. Not all positions will qualify for safety-sensitive or federal regulatory exemptions. Consider which roles in your company require drug testing.
- Document the process. Make sure your company has a written policy for drug screening and apply it fairly across the board.
- Partner with a background screening company. A reputable background check provider can offer guidance and support for complying with marijuana laws.
California: Construction Employers Can Keep Testing for Marijuana
In 2024, a California law made it illegal to discriminate against employees for off-duty marijuana use. Now, many employers cannot do drug testing for cannabis unless they suspect on-the-job impairment. However, a few exceptions apply.
The California law specifically carves out an exemption for “employees in the building and construction trades.” Other exemptions in the law include:
- Applicants or employees hired for positions that require a federal background check or security clearance
- Applicants or employees in jobs where federal laws mandate drug testing
What California Employers Need to Know
If you’re a construction employer in California, you can continue screening employees for marijuana use. You can also take adverse action if a prospective or current employee fails a drug test.
While the law took effect last year, it’s a good reminder for California employers who want to make sure they’re complying fully.
Stay Up-to-Date on Compliance Changes with InCheck
Changes to marijuana laws in these states may be the most recent, but they won’t be the last. As more states pass and revise cannabis laws, it’s more important than ever to keep your screening policy up-to-date with compliance requirements.
At InCheck, our team of experts can offer guidance on navigating these changes to save your HR team some time and stress. Contact us today to build a proactive, compliant pre-employment screening policy.