“Can I still drug test my crew?” In most places, yes. What has changed is what a marijuana result lets you do with it. Three sets of rules now meet on a contractor’s crew: the federal testing rules for anyone driving a truck that needs a commercial driver’s license, the state laws that protect off-duty cannabis use, and an OSHA rule that limits drug tests used to punish people for reporting injuries. Here is each, with California and New York worked through, and a policy that fits on one page.
First question: does anyone on the crew drive a CDL truck?
If a driver needs a commercial driver’s license for your truck, federal testing rules apply to that driver, and state cannabis laws do not override them. Under 49 CFR §382.103, the Federal Motor Carrier Safety Administration’s testing rules cover employers whose drivers operate a commercial motor vehicle subject to the CDL requirements. Section 382.107 defines that vehicle; the lines that matter to a contractor are:
For those drivers, the federal rules set the tests. Before a driver first performs safety-sensitive work, 382.301 requires a pre-employment drug test with a verified negative result, with narrow exceptions. Section 382.701 requires a full query of the federal Drug and Alcohol Clearinghouse before the driver starts, and a query at least once a year after that. Section 382.305 requires random testing, with a base minimum annual rate of 50 percent of driver positions for drugs and 10 percent for alcohol, which the FMCSA may lower to 25 percent when the industry’s positive rate stays under 1 percent for two years in a row.
A state cannabis card does not change a result. Under 49 CFR §40.137(a), the medical review officer who verifies a test must verify a confirmed marijuana positive unless the employee presents “a legitimate medical explanation,” and §40.151(e) bars verifying a test negative because a physician recommended a Schedule I drug, its example being state “medical marijuana” laws.
Federal law is moving. On April 23, 2026, the Justice Department announced it had placed FDA-approved marijuana products and medical marijuana products subject to a qualifying state-issued license in Schedule III, and set a hearing beginning June 29, 2026, on rescheduling marijuana more broadly. Before that order, the Transportation Department’s update relayed by the FMCSA Clearinghouse in February 2026 said “for now, the DOT drug and alcohol testing process has not changed.” After it, the law firm Jackson Lewis reported in May 2026 that DOT’s Office of Drug and Alcohol Policy and Compliance answered that there is currently “no instance” when the officer could verify a marijuana positive as negative because the employee says a state-licensed product caused it, and that state cards and physician recommendations do not meet Part 40’s test. Read that office’s current guidance before you change a CDL driver’s program.
Both state laws below leave the federal tests alone. California’s says it “does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances.” New York’s Department of Labor names the CDL rules of 49 CFR Part 382 as its example of testing an employer may still do.
California: test for THC, not for old use
Since January 1, 2024, California Government Code §12954 makes it unlawful for an employer to discriminate in hiring, firing or any term of employment based on a person’s “use of cannabis off the job and away from the workplace,” or on a test that found “nonpsychoactive cannabis metabolites” in their hair, blood, urine or other bodily fluids. The state’s Civil Rights Department says the protections apply to employers with five or more employees. What that means for a test:
Then there is the line written for the trades. Subdivision (a)(2) says the anti-discrimination subdivision “does not apply to an employee in the building and construction trades.” The department’s FAQ lists that exception in its answers about current employees, not about applicants, and it does not reach subdivision (b), the ban on asking applicants about past use. The section does not define “building and construction trades,” so whether a house cleaning, pest control or lawn care company falls inside it is a question for an employment lawyer, not a guess.
New York: impairment you can describe, not a test result
New York Labor Law §201-d protects an employee’s legal use of cannabis “prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or other property.” The state Department of Labor says it applies to all private employers in the state “regardless of size, industry, or occupation.” It does not cover independent contractors or employees under 21.
“Can an employer test for cannabis? No, unless the employer is permitted to do so pursuant to the provisions of Labor Law Section 201-D(4-a) or other applicable laws.” Federal permission is not enough: an employer “cannot test an employee for cannabis merely because it is allowed or not prohibited under federal law.” Subdivision 4-a lets an employer act where a state or federal law requires it, where not acting would put it in violation of federal law or cost it a federal contract or funding, or where the employee is impaired.
Impaired has a specific meaning: the employee “manifests specific articulable symptoms while working” that lessen their job performance or interfere with the employer’s duty to provide a safe workplace. The department’s guidance adds three points a supervisor needs to know:
The department says you may ban cannabis during “work hours,” including paid and unpaid breaks, meal periods and on-call time, and may ban it on your property and in company vehicles, “even after regular business hours.” You may not require a promise not to use cannabis off duty as a condition of the job.
Other states
California and New York are not the only ones. The National Conference of State Legislatures’ summary, last updated March 6, 2025, lists employee protections for recreational use in California, Connecticut, Montana, Nevada, New Jersey, New York, Rhode Island and Washington, and says that of the 38 states with legal medical cannabis, “about half” have policies that address discrimination against medical patients. The laws differ in what they protect, and a state can pass one after a summary is written, so read your own state labor department’s guidance before you write the policy.
After an injury: OSHA’s line
OSHA’s recordkeeping rule, 29 CFR §1904.35(b)(1)(iv), says you must not discharge or discriminate against an employee “for reporting a work-related injury or illness.” OSHA’s memo of October 11, 2018, says “most instances of workplace drug testing are permissible” under the rule, and lists random testing, testing unrelated to injury reporting, testing under a state workers’ compensation law, testing under federal law such as a DOT rule, and testing “to evaluate the root cause of a workplace incident that harmed or could have harmed employees.” For that last kind, the memo says the employer should test all employees whose conduct could have contributed to the incident, “not just employees who reported injuries.”
In New York, the department’s answer on cannabis testing still applies after an incident, and a cannabis result does not show impairment on its own. Write down what the supervisor saw before the incident; that is the evidence the law there asks for.
The one-page policy
Say a roofing company in New York runs one dump truck with a CDL driver and eight other employees. Its policy can fit on a page:
- The CDL driver is tested under the federal program, through a provider that handles DOT tests, with the Clearinghouse queries.
- Everyone else: no cannabis use, possession or impairment during work hours, including breaks and on-call time, on company property or in company vehicles.
- Suspected impairment: the supervisor writes down the specific signs (a saw run unsafely, a stumble at the roof edge, a lift driven recklessly) and removes the person from the task. The signs are the evidence, not a smell and not a test.
- After an incident: testing only to find the root cause, of everyone whose conduct could have contributed, never as a reaction to an injury report alone.
- Applied the same way to everyone. California’s department gives the example that requiring only applicants of a certain race or ethnicity to take drug screenings violates its civil rights law.
A California shop would add which cannabis test its lab runs and strike any question about past use. The test sits next to the background check in the hiring file; Background Checks on New Hires: The FCRA Steps covers that part.
General information, not legal or tax advice. Rules change and vary by state; check with the agency named above or a professional for your situation.