Emerging Litigation Podcast

Episode: Cannabis Laws & Workplace Drug Testing: What Employers & Employees MUST Know in 2026

Host: Tom Hagy
Guest: Kia Denner, Senior Labor & Employment Litigator, Costanji, Brooks Smith & Prophet
Date: January 5, 2026

Episode Overview

In this episode, Tom Hagy interviews Kia Denner, a seasoned employment litigator and co-chair of his firm’s cannabis and employee substance abuse practice group, about the rapid evolution of cannabis laws and their profound effect on workplace drug testing, employer liability, and employee rights. The conversation centers on the legal and practical challenges that both employers and employees face as federal and state drug laws change, with a particular focus on how to create defensible workplace safety programs in 2026.

Key Discussion Points & Insights

1. Substance Abuse in the Workforce (00:00-06:54)

• Prevalence & Impact:
  • Hagy shares statistics highlighting the wide reach and cost of substance abuse:
    • 9% of full-time US workers annually meet criteria for substance use disorder.
    • Some sectors (e.g., hospitality) see rates as high as 19%.
    • 40% of industrial workplace fatalities involve alcohol misuse.
    • Estimated cost to employers is $81 billion annually.
    • 46 million Americans over 18 had a substance use disorder in 2022; 30 million of those were employed.
  • Quote (Tom Hagy, 01:41):
    “Still, the human impact, that's huge… Look around you. Somebody you know.”
• Changing Law, Changing Measurement:
  • Denner notes increased attention to cannabis use is partially due to legalization and society’s evolving willingness to measure and report drug use.
  • Quote (Kia Denner, 05:01):
    “I think the stats are interesting because we're just measuring things now that maybe we hadn't been measuring 10 years ago…”

2. Cannabis Laws: What’s Protected & What’s Not (06:54-13:32)

• On/Off-Duty Use Distinction:
  • Legal job protections for off-duty cannabis use exist in over 20 states.
  • On-the-job impairment remains strictly prohibited everywhere.
  • Quote (Kia Denner, 09:21):
    “Even though there's 20 some odd states... with job protections for legal off-duty cannabis use, it's just like it sounds. It's off duty.”
• Challenges in Detection and Enforcement:
  • Alcohol impairment is straightforward to test (breathalyzers), but cannabis and other drugs are not.
  • Cannabis tests often detect prior use (up to 30-40 days), not real-time impairment.
  • Quote (Denner, 11:08):
    “So it's not going to show that they were impaired at work. It's just going to show that that person used cannabis within some time between 10 minutes ago and, you know, 40 days ago.”

3. Employer Approaches: Policies, Privacy, & ‘Reasonable Suspicion’ (13:32-18:23)

• Identifying Concerns:
  • Indicators for intervention: Performance issues, unexplained accidents, or credible evidence of substance use.
  • Diagnosing impairment has become more complicated with the proliferation of odorless delivery methods (vapes, edibles).
• Privacy Considerations:
  • States like New York prohibit employment action based on lawful off-duty conduct, including cannabis use.
  • ADA requires confidentiality on any medical info, including substance use disorders or accommodation requests.
  • Quote (Denner, 17:05):
    “...when you talk privacy, you talk just generally about the Americans with Disabilities act, the ADA. And generally what that says is... when you're talking about medical information, it has to remain confidential, and you have to store that information in a separate file…”

4. Building a Legally Defensible Safety Program (18:23-23:15)

• Three Stages of Medical Inquiry under the ADA:
  1. Pre-offer: No disability/medical questions.
  2. Conditional offer: Broader inquiries/tests allowed, if done for all candidates.
  3. Post-hire: Any inquiry or test must be job-related and consistent with business necessity.
• Common Pitfalls:
  • Irrelevant or overly broad questions (“Tell us all your prescriptions”) violate the ADA.
  • Failing to properly segregate medical/confidential files.

5. Documentation & Training: The Litigator’s Imperative (23:15-25:33)

• Why Documentation is Crucial:
  • Key for defending action taken against employees, showing business necessity, or adherence to protocols.
  • Supervisors and managers must be consistent, trained, and know what and how to report.
  • Quote (Denner, 23:26):
    “Documentation, I think I have a slide that just says documentation, Documentation, documentation…”
  • Use forms, have corroborating witnesses, and always involve HR for record-keeping.

6. Fitness for Duty & Return-to-Work (26:27-29:37)

• When and How to Apply:
  • Often used for employees returning from FMLA or substance use treatment.
  • Employers can require fitness-for-duty certifications—especially if the policy is stated up front.
  • “Last chance agreements” can set terms for testing post-treatment.
  • Quote (Denner, 26:41):
    “…if you voluntarily come forward and you say that you want to get treatment, we will work with you on that. However, if you go and get treatment, we're going to subject you to a test… periodically test you for the next year…”

7. Common Misconceptions (29:37-34:52)

• For Employers:
  • One-size-fits-all policies are not viable if you operate across multiple states.
    • Quote (Denner, 31:40):
      “Number one misconception is that they can do this in a one size fits all manner. That's a problem.”
  • State law differences may require multiple handbook policies or addenda.
• For Employees:
  • Having a prescription—including cannabis in some states—does not permit working while impaired.
• About Drug Testing:
  • Can’t require employees to disclose all prescription meds unless there’s a business necessity.
  • Testing rules vary widely by state—some (e.g., Iowa) mandate detailed steps unrelated to cannabis.

8. The Evolving Legal & Political Landscape (34:54-41:35)

• Drug Schedules and Potential Changes:
  • Federal efforts to move cannabis from Schedule I to Schedule III could alter legal obligations.
  • If cannabis is de-scheduled completely, ADA and other federal laws may need major revisions.
• Rapid Change & Uncertainty:
  • Political and administrative attitudes toward cannabis are inconsistent and trend-sensitive.
  • Employers must remain nimble and anticipate future legal shifts.
  • Quote (Denner, 39:10):
    “If it ever gets off Schedule 1 completely and gets off the schedules, that could change… The ADA jurisprudence around marijuana and cannabis, that will change when that happens.”

9. Social Media, Privacy, and Generational Change (40:14-41:35)

• Workplace Consequences:
  • Employees should avoid posting evidence of drug/alcohol use, especially referencing their employer.
  • Permanent digital footprints can impact employment, as public scandals lead to swift terminations.
  • Generational differences in online behavior: Younger workers are savvier about risks.
  • Quote (Denner, 40:48):
    “It's forever. You can't put drug use on there. And certainly you can't put anything, you know, associated with your company…”

Notable Quotes & Memorable Moments

• “Nobody wants to have to hire a Lawyer to do 35 different addendum to your handbook.” (Denner, 32:12)
• “None of these laws…are ever going to have to let folks be impaired on the job. … We're never gonna have to do that. … But the thornier issue…is what happens on a Saturday night. How does that impact Monday morning?” (Denner, 39:08)
• “When we write policies and we talk about legal prescription use, I always make sure that I distinguish that from marijuana or medical marijuana or medical cannabis use.” (Denner, 30:40)
• “‘If the Eye of Sauron, you know, finds you… The next thing you're going to read about…is…that person just got fired.’” (Denner, 41:31)

Key Takeaways

• Off-duty cannabis use can be protected in many states, but on-duty impairment is never allowed.
• Employers must have tailored, state-compliant policies—no more ‘one-size-fits-all’ handbooks.
• Defensible safety programs require clear documentation, robust training, confidentiality, and a focus on business necessity.
• Legal and societal norms are shifting quickly; ongoing legal review and adaptive counseling are essential.
• Employees—and especially managers—must be careful about the intersection of personal conduct, privacy, and employer reputation, including on social media.

For workplace risk managers, HR professionals, plaintiff and defense attorneys, and anyone handling employment policy, this episode is an essential and practical primer on navigating new drug laws, medical privacy, safety concerns, and cultural shifts in the modern workforce.