Changing Marijuana Laws Make for Impending Confusion on Construction Sites
Construction Dive takes a hard look at what Loosened marijuana laws may mean for construction sites moving forward.
On December 2, the U.S. Drug Enforcement Administration (DEA) will hold a hearing to determine if marijuana should be reclassified as a Schedule III drug. This change would move it from Schedule I, where it is currently grouped with drugs like heroin, LSD, and ecstasy, to Schedule III, placing it in the same category as Tylenol with codeine and anabolic steroids.
This potential reclassification is part of a broader movement toward more relaxed marijuana laws in the U.S. Currently, only four states — Idaho, Kansas, South Carolina, and Wyoming — still prohibit any form of marijuana use, according to Houston-based drug testing and employee screening firm DISA Global Solutions.
"Two years from now, I’d be surprised if we’re not 100% legal,” said Trent Cotney, a partner and construction team co-leader at Adams and Reese in Tampa, Florida. Cotney, who specializes in cannabis regulation and employee drug testing in the construction industry, noted, "It’s coming that quick."
The push for marijuana decriminalization has gained momentum since 2012, when Colorado and Washington became the first states to legalize recreational use. However, marijuana remains illegal at the federal level, and even if the DEA approves the reclassification, it would still only apply to medical use.
The evolving legal landscape, along with federal contract requirements for drug testing, has made it more challenging for construction employers to navigate pre-employment, on-the-job, and post-incident cannabis testing, especially in states where workers’ off-duty marijuana use is protected.
In New York, for example, employers are not allowed to test workers for marijuana during the hiring process or while they are on the job. Furthermore, common testing methods like urine and hair analysis don’t detect active impairment but rather cannabis traces, which can linger for days or weeks after consumption, even when the person is no longer impaired.
In high-risk industries such as construction, where an impaired worker can pose serious safety risks, these developments have left employers in a difficult position.
“In high-risk industries like construction, it’s such a challenge for employers to just figure out what to do to keep the workplace safe, but still comply with all of these laws that protect marijuana usage while the person is off duty,” said Kathryn Russo, a principal at Jackson Lewis in Long Island, New York, who focuses on workplace drug and alcohol testing under federal, state, and local laws.
The intersection of state and federal laws adds further complexity for construction firms, especially when working on federally funded projects where drug testing may be required. In New York, for example, while state law protects off-duty marijuana use, employers are still allowed to test for marijuana if it’s mandated by federal regulations or a contract with a federal agency.
“It depends on what state we’re talking about,” said Russo, highlighting how rules vary.
In California, where recreational marijuana use is legal, two new laws prevent employers from asking about off-duty cannabis use or using urine or hair tests to make employment decisions. However, these rules do not apply to construction workers, who can still be required to undergo marijuana testing.
For contractors seeking to navigate this patchwork of laws, Atlanta-based law firm Troutman Pepper offers a comprehensive state-by-state analysis of marijuana testing and employment policies. This evolving legal environment has led many construction firms to outsource their drug screening processes to specialized companies.
“A lot of contractors are throwing up their hands and subbing everything out,” said Cotney.
Some firms have stopped testing for marijuana altogether, especially when it comes to hiring. Given the industry’s ongoing shortage of skilled workers, many employers are opting to remove marijuana from pre-employment drug screening panels. “Many employers are removing marijuana from their pre-employment testing panel,” Russo said. “Employers are often finding it difficult to recruit qualified applicants if they’re going to get screened out because of marijuana use.”
Today, many construction firms only test for marijuana when required by federal contracts or after a workplace incident as mandated by insurance policies. In these cases, blood tests may offer a more accurate measure of impairment, as urine and hair tests do not reflect current impairment. Fremont, California-based Hound Labs has developed a breathalyzer test that detects cannabis use within a few hours, which shows potential but is not yet widely used. “The manufacturer of the breathalyzer says that the window of detection is roughly two to three hours,” Russo said. “If that turns out to be accurate, I think that would be attractive to many employers.”
Ultimately, even in states where marijuana testing is restricted, supervisors are still responsible for ensuring workplace safety under OSHA’s general duty clause. This is often outlined in construction contracts. Cotney and Russo emphasized that if a supervisor observes signs of potential impairment—such as bloodshot eyes, slurred speech, or unsteady movements—due to recent marijuana use or other substances, they have the legal right to send the worker home. “Regardless of whether it is legal or not, if it impairs your ability to perform your job duties, safety trumps that any day of the week,” Cotney said.
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