If an employee uses marijuana off the clock and the employer doesn’t test for marijuana, isn’t it much like the tree falling in the woods?

A recent Wall Street Journal report (“More U.S. Workers Are Testing Positive for Marijuana. Fewer Employers Are Concerned,” July 10, 2026) suggests that is the case, laying out data that most employment lawyers have felt anecdotally for years: Marijuana positivity rates are climbing, and employer appetite for testing on it is shrinking. Here’s what the numbers actually show, and what that means for employers who haven’t yet updated their drug-testing policies.

The Data

According to Quest Diagnostics’ 2025 workforce testing data — roughly eight million tests — the numbers break down as follows:

• Urine tests – marijuana positivity rose to 4.4%, up from 3.9% in 2021.
• Hair tests (which can detect use up to 90 days back) – about 15% were positive, a nearly 60% jump since 2021.
• Random hair screenings – 21% were positive, the highest of any category cited.

Why Employers Are Pulling Back

The Journal cites Fisher Phillips partner Todd Logsdon and the firm’s 2024 survey of roughly 1,000 employers; about half don’t test for cannabis pre-hire at all, largely because it shrinks the applicant pool. Of those that do test, 44% reported recruiting difficulties tied to it, and nearly a quarter were considering loosening their policy.

Named examples of companies that have already dropped pre-hire marijuana testing, per the article, include Citigroup and “many” Wall Street peers, AutoNation, Home Depot (for most positions), and Amazon (for most applicants, since 2021).

The Legal Backdrop

Three things are converging here, and employers need to track all three separately because they don’t move in sync:

1. State law patchwork. The article notes New York bars testing most job applicants and workers for marijuana, and that at least two dozen states have some form of employment protection for medical marijuana users (sourced in the article to the Marijuana Policy Project). Mississippi, on the other hand, has employer protectionary language in its cannabis laws. This is a state-by-state analysis problem — there’s no single federal rule here.
2. Federal reclassification in progress. The article states the Trump administration began the process this spring of reclassifying marijuana as a less dangerous drug (moving it off Schedule I), which could eventually affect testing policy. But it is important to note that rescheduling of non-medical marijuana is a regulatory process, not a completed one to date, and the article itself only says it “could eventually affect” employer policy — it does not say how or when. Anyone advising clients on the assumption this is settled or imminent is getting ahead of the actual state of play.
3. Safety-sensitive carve-outs are holding firm. Trucking, construction, and similar industries are described as unlikely to drop full-panel testing, and more likely to lean on hair testing specifically to catch longer-term “lifestyle” use rather than just recent impairment.

Best Practices Going Forward

We’re regularly asked by employers what they can do to have an effective and compliant workplace drug policy, particularly with respect to the evolving legal status of marijuana. Here are a few things we like to point out:

• Separate “safety-sensitive” from “everything else.” Bifurcating the policy by role rather than a blanket approach. DOT-regulated and safety-critical positions are a different legal and practical calculus than a marketing hire.
• Shift resources from pre-hire testing to on-the-job impairment detection. Logsdon’s suggestion in the article — ditch the pre-hire cannabis screen and monitor for actual impairment instead — is worth taking seriously as a recruiting-competitiveness move, not just a legal one. To be clear, though, I’m not aware of a mature, legally battle-tested standard for “impairment testing” the way there is for threshold-based urine testing. That means an increased role for employers in educating themselves and their employees on signs of impairment and taking action when an employee shows one or more of those signs. An employer cannot simply turn a blind eye and claim ignorance if it is not going to conduct drug screenings.
• Audit state law before finalizing any national policy. Given the patchwork described above, a one-size-fits-all national testing policy is a liability risk in states with applicant protections (New York being the clearest example named). This needs jurisdiction-specific review. Yes, it’s a pain and it will involve costs, but it’s essential in the current legal landscape.
• Watch rescheduling, but don’t act on it yet. Track the DEA process, but don’t change policy based on an anticipated outcome that hasn’t happened.
• Don’t assume “less concerned” means “no policy.” The trend is toward normalization, not elimination of employer interest — increasingly, off-the-clock use is being tolerated in a way that on-the-clock impairment is not, mirroring how alcohol is generally treated.

Bottom Line

The direction of travel is clear: Fewer employers view a positive marijuana test as disqualifying, and more are re-routing their screening budget and legal risk tolerance toward impairment rather than off-duty use. But the legal foundation under that shift — state law variation and a pending, not final, federal rescheduling process — is still moving. Policies built now should be revisited, not treated as settled.

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