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Lawmakers have introduced competing proposals to delay, repeal, or replace the new restrictions. The Senate has also approved a short extension that would postpone most of them until December 11, although that extension has not become law.
Another approach would preserve a legal market for some intoxicating hemp products through federal regulation.
On August 10, Reps. Beth Van Duyne, R-Texas, and Greg Landsman, D-Ohio, introduced the bipartisan Beverage Regulatory Parity Act. The bill would create a federal regulatory framework for hemp-derived beverages containing up to 5 milligrams of intoxicating THC per serving.
The proposal borrows from alcohol regulation. Sales would be limited to people 21 and older, manufacturers would face testing and labeling requirements, synthetic cannabinoids would be prohibited, and states could impose stricter rules or ban the beverages entirely.
One proposed labeling requirement is particularly relevant to employers: consumers would have to be warned that drinking a hemp-derived beverage may cause them to fail a drug test for marijuana.
Consider the following scenario: an employee purchases a federally lawful THC beverage, consumes it while off duty, and subsequently tests positive for marijuana under an employer’s drug-testing program. The product was legal. The test was positive. But was the employee actually impaired at work?
These two questions do not necessarily yield the same answer. In fact, the distinction between a positive test result and actual impairment is becoming a central issue in workplace cannabis policy.
Depending on the testing method used, a positive THC result can indicate prior exposure to the substance without proving that the employee was impaired at the moment the specimen was collected. This is a critical distinction, as many standard drug tests detect metabolites that remain in the body long after the psychoactive effects of THC have worn off.
Recognizing this scientific reality, several states have begun incorporating this nuance into their employment laws. These states are moving away from a strict zero-tolerance approach and toward policies that require employers to demonstrate actual impairment rather than relying solely on a positive drug screen.
The legal landscape for off-duty cannabis use varies significantly from state to state, with each jurisdiction taking its own approach to balancing employee rights and workplace safety.
New York generally protects lawful off-duty cannabis use, subject to specific exceptions. Under New York law, employers are permitted to take action when employees exhibit specific articulable symptoms of impairment while at work. State guidance is explicit on this point: a cannabis test alone cannot establish impairment. This means New York employers must rely on observable behavioral indicators rather than test results alone when making employment decisions related to cannabis use.
Washington takes a different approach to the issue. The state generally restricts employers from making initial hiring decisions based on lawful off-duty cannabis use or certain preemployment cannabis test results. However, Washington’s protections are not absolute. The law includes exceptions for specified safety-sensitive positions and applies where federal requirements mandate drug testing.
Minnesota also provides employment protections involving certain lawful cannabis and hemp products. Like Washington, Minnesota preserves employer authority in specified circumstances, allowing businesses to maintain safety standards while still offering some protections for employees who use legal products off the job.
Adding another layer of complexity to this already fragmented legal landscape is the rise of federally lawful intoxicating hemp products. These products, including THC beverages derived from hemp, occupy a unique legal space. They are federally legal under the 2018 Farm Bill, yet they produce intoxicating effects similar to traditional marijuana.
This creates a challenging situation for employers. An employee could consume a product that is completely legal under federal law, yet still face consequences under an employer’s drug-testing policy. The question of how to handle these products is far from settled.
Congress appears to recognize the underlying challenge posed by hemp-derived intoxicating products. The proposed Beverage Regulatory Parity Act would direct federal agencies to study how to measure and distinguish impairment associated with hemp-derived beverages, including impairment that affects motor vehicle operation.
This provision is particularly telling. Congress is considering legislation that would regulate an intoxicating THC product at the federal level while simultaneously acknowledging that determining impairment from its use remains a difficult scientific and legal question. The fact that lawmakers are grappling with this issue at the federal level underscores just how complex the intersection of legal THC products, drug testing, and workplace impairment has become.
As more states legalize cannabis in various forms and hemp-derived products continue to enter the marketplace, employers, employees, and policymakers will need to navigate a patchwork of laws that often provide conflicting guidance on how to handle positive drug tests and suspected impairment.
For workers covered by Department of Transportation drug-testing requirements, the analysis is far more straightforward.
DOT continues to mandate marijuana testing for safety-sensitive employees. The agency has also clarified that a Medical Review Officer cannot verify a laboratory-confirmed marijuana-positive result as negative solely because an employee attributes the result to marijuana obtained through a state-authorized program.
A federally lawful hemp beverage would present a different factual situation. However, the Beverage Regulatory Parity Act would not amend DOT’s drug-testing regulations or create an exception for a positive result attributed to a hemp-derived THC beverage.
Commercial drivers and other DOT-regulated workers should not assume that the legal availability of a THC product means they can consume it without potential workplace consequences.
That distinction could become increasingly significant if federally regulated THC beverages eventually appear alongside beer and other adult beverages on store shelves.
Employers do not need to rewrite their drug-testing policies based on proposed legislation. The 2025 hemp restrictions remain law, and Congress has not settled on an alternative.
The debate does provide a useful reason to examine what existing policies actually regulate.
Employers should understand whether their policies distinguish among substance use, a positive drug test, and workplace impairment. Multistate employers should identify jurisdictions that restrict marijuana testing or protect lawful off-duty use. Employers with DOT-regulated or other federally regulated workers should continue treating those populations separately where federal rules require it.
Employers should also consider how they would handle an employee who attributes a positive marijuana result to a legally purchased hemp product. That question may implicate the employer’s policy, the testing method, applicable state law, and the employee’s job duties.
Most importantly, employers should avoid assuming that the legal status of a product determines the employment consequences of using it.
Congress may ultimately preserve last year’s restrictions, delay them, or create a regulated pathway for some intoxicating hemp products. Whatever lawmakers decide, the workplace question will remain.
A substance can be legally available. An employee can test positive for THC. Neither fact, standing alone, necessarily establishes workplace impairment.
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