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Recently, New York law makers announced they are considering a ban on pre-employment tests for marijuana. Effectively, this would prevent employers from testing prospective employees for marijuana usage during the hiring process. This approach comes as the United States is poised for federal cannabis legalization. Businesses in states like New York stand to benefit from reconsidering these policies, as current tests for marijuana only show the presence of THC. Proponents of banning pre-employment tests for marijuana take the position that the mere presence of THC does not prove impairment, as THC can stay in one’s system for days or even weeks. Additionally, firing someone for the presence of THC can be expensive to the employer.

Cities like Boulder, Colorado have taken a stand on post-employment drug testing, where employers are prohibited from requesting or requiring urine, blood or other bodily fluid tests for any drug or alcohol unless a set of specific conditions are met. Essentially, the employer must have reasonable suspicion based on clear and objective facts to believe that the employee is under the influence of a drug or alcohol on the job in order to require a test. Of course, there are exemptions for safety-sensitive and government employers like law enforcement, schools, and other government agencies.

Shifting a focus from the presence of THC to an employee’s impairment on the job will likely gain traction in the coming months and years as we move towards federal marijuana legalization in the U.S.