Policy required document Workplace
Drug and Alcohol Policy
A drug and alcohol policy says whether and when the employer tests, what substances, what happens on a positive result, and how impairment at work is handled. For a generation it was a simple document. Cannabis legalization turned it into one of the policies most likely to be wrong.
California Government Code 12954, in force since January 1, 2024, makes it unlawful to discriminate in hiring, firing or any term of employment based on cannabis use off the job and away from the workplace, or on a drug test that finds only non-psychoactive cannabis metabolites, with exceptions for the building and construction trades and positions requiring federal background checks or clearances.
New York Labor Law 201-d protects legal use of cannabis outside working hours and off the premises, and lets the employer act only where the employee manifests specific articulable symptoms of impairment at work. Minnesota, Washington, Nevada, New Jersey and others have their own versions.
A pre-employment THC screen that was routine in 2020 is a discrimination claim in several states now.
The substance itself has not gone away. Quest Diagnostics, the largest workplace testing laboratory, reported marijuana positivity of 4.5 percent in urine tests of the general U.S. workforce in its 2025 Drug Testing Index, and an overall positivity of 19.1 percent in hair tests in 2025, the lab's own data.
Safety-sensitive work still justifies testing, and federally regulated drivers, pilots and pipeline workers are tested under Department of Transportation rules that state cannabis laws do not touch. Federal contractors and grantees have their own Drug-Free Workplace Act duties.
The policy is where an employer separates the roles it may test from the ones it may not, and replaces a metabolite test with an impairment standard for the rest.
Obligation ledger
Who requires it, and what each one says.
| Source | Applies when | What it requires | Status |
|---|---|---|---|
| California Government Code, cannabis use off the job Cal. Gov. Code 12954 | California employers, from January 1, 2024, except building and construction trades and positions requiring federal background investigation or clearance | Unlawful to discriminate in hiring, termination or any term or condition of employment based on the person's use of cannabis off the job and away from the workplace, or on an employer-required drug test that finds non-psychoactive cannabis metabolites. Legally required. | Mandatory |
| New York Labor Law, lawful off-duty activities NY Labor Law 201-d | Every New York employer | No discrimination for legal use of consumable products, including cannabis in accordance with state law, before or after work hours and off the employer's premises; the employer may act where the employee manifests specific articulable symptoms of impairment while working that decrease or lessen performance. Legally required. | Mandatory |
| Drug-Free Workplace Act of 1988 41 U.S.C. 8102 and 8103 | Federal contractors with a contract of $100,000 or more, and all federal grantees | Publish a statement prohibiting unlawful drug activity in the workplace with the consequences, give a copy to each employee, run a drug-free awareness program, require employees to report criminal drug convictions, and take action on them. Legally required; a policy in name. | Mandatory |
| Department of Transportation drug and alcohol testing procedures 49 CFR Part 40 | Employers of safety-sensitive employees regulated by FMCSA, FAA, FRA, FTA, PHMSA or the Coast Guard | Pre-employment, random, reasonable suspicion, post-accident and return-to-duty testing under federal procedures, unaffected by state cannabis law. Covered on this site under the DOT and FMCSA framework. | Mandatory |
Required sections
- Which roles are tested, on what basis (pre-employment, reasonable suspicion, post-accident, random) and which are not, with the state restrictions applied by the employee's location
- What is tested for, and that cannabis metabolite tests are not used for roles where state law forbids acting on them
- The impairment standard for roles that cannot be tested for cannabis: specific, articulable, documented observations by trained supervisors
- Alcohol at work and at company events
- Prescription medication and medical cannabis, and the accommodation route
- Consequences of a positive result or refusal, and any treatment or return-to-work option (Minnesota requires an offer of treatment before termination on a first positive)
- Confidentiality of results and who sees them
- The DOT program as a separate section where covered employees exist, and the Drug-Free Workplace Act statement where the employer is a federal contractor or grantee
- Supervisor training on reasonable suspicion, with records
- No retaliation for medical use where the state protects it, and no discrimination for lawful off-duty use where the state protects it
What the examiner asks for
What changed
Change log.
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Questions
What people ask.
Can we still do pre-employment drug tests?
For most roles, yes for everything except cannabis in the states that protect off-duty use. A standard panel that reports THC metabolites, acted on, is the claim in California and New York. Either drop cannabis from the panel for those roles or use a test that measures active THC, and keep metabolite testing for the roles the statutes except.
What is an impairment standard?
A written rule that a supervisor may act on specific, articulable, contemporaneous observations of impairment at work, documented on a form, rather than on a chemical result. New York's statute uses that language. It requires trained supervisors, which is why the training record is part of the evidence.
Do state cannabis laws affect our truck drivers?
No. DOT-regulated employees are tested under federal rules, cannabis remains prohibited for them, and state laws expressly do not reach federally required testing. The policy should keep the DOT program in its own section so the two regimes are never confused.
Do we have to offer treatment?
In Minnesota, on a first positive test, yes, before termination. Elsewhere it is a choice. An employee assistance referral is common and reduces the risk that a discipline decision looks like disability discrimination where addiction is involved.
Sources
Cal. Gov. Code 12954, cannabis use off the job (California Legislative Information)NY Labor Law 201-d (NY Senate)41 U.S.C. 8102, Drug-Free Workplace Act, contractor requirements (Cornell LII)49 CFR Part 40, DOT drug and alcohol testing procedures (Cornell LII)Quest Diagnostics, Drug Testing Index press release, 2026 (2025 data)