As of this writing, 37 states, three US territories, and the District of Columbia have approved the use of medical marijuana, while 21 states, two territories, and Washington, DC, now allow recreational use.

So how many employed Americans are using marijuana? About 18% of adults with full-time jobs and 21% of adults with part-time jobs consumed cannabis in 2018, according to the Centers for Disease Control. We can only expect these numbers to go up as availability and access increase across the country, raising new complications for employers with drug-testing policies in place.

To understand more on managing marijuana use in the workplace, I spoke to Scott M. Pollins, an attorney who has worked on some of these cases in Pennsylvania, and David Weiner, the co-founder of Gossamer, a marijuana lifestyle brand.

Here are some things to keep in mind as you navigate the changing landscape of marijuana laws and usage:

Private companies still have the right to conduct drug tests.

It remains legal in all 50 states for private-sector employers to drug test their employees, including both pre-employment drug testing and randomized drug testing. Employers can conduct these tests at any time and for any (or no) reason without fear of penalty or litigation, says Pollins.

Keep in mind, however, that employers may not drug test a prospective employee until an official conditional employment offer is made. “If a private-sector employer drug tests job applicants (not yet employees, not yet even offered employment), and subsequently declines to offer them a job based on the outcome of a drug test, that could violate the Americans with Disabilities Act,” says Pollins.

Random drug testing of existing employees should also be administered carefully, he adds, to avoid discrimination claims: Employers should be “consistent in how they administer the drug testing (by consistent, that can mean test everyone in a department, not just certain people).”

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