Last month Washington and Colorado voters passed state laws authorizing the legalization of recreational marijuana use. Given that there are pockets of the United States where the medical or recreational use of marijuana is legal or tolerated under state law, some Texas employers have asked whether it has any effect on their drug testing or substance abuse policies.

For example, an employee testing positive for marijuana may attempt to justify the positive test explaining that he used marijuana while on a weekend trip to a state that has decriminalized marijuana.   The short answer is that these laws have little, if any, effect on employers drug testing and substance abuse policies for their Texas operations and employees. First, Marijuana possession is still unlawful under Texas and federal law. Federal law still criminalizes the possession if this controlled substance even in states that have legalized it. Second, some states have laws that prohibit employers from taking adverse action against employees who engage in lawful off-duty conduct. Texas has no such law.


Consequently, if an Texas employer would take disciplinary action against an employee testing positive for past marijuana usage, recent legislation in other states place no limits on the employer continued ability to discipline employees for that usage even if it was legal where the employee used the substance. 


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