Criminal Record Searches and Drug Screening: 7 FAQs on Hiring and the Legalization of Marijuana
As marijuana laws continue to evolve across the country, employers are understandably asking when it’s safe to test candidates and employees for the drug and how background check processes may need to change going forward.
For many employers, understanding how to navigate changing marijuana laws is anything but straightforward, especially considering the complexities of managing an increasingly remote workforce. With candidates and employees living and working in many different states, it can be confusing to know which marijuana laws apply and what it means for your hiring and talent management practices.
Although marijuana legislation may affect each organization differently, having the answers to some commonly asked questions can help you understand the laws and how they may impact your background and drug screening processes. Here are seven FAQs to get you up to speed with the latest developments.
1. Is marijuana legal?
This is one of the most pressing questions in the nation, and the answer depends largely on location. Marijuana is still considered an illegal substance on the federal level, but it has become legal in several states.
The federal Controlled Substances Act has banned the use and sale of marijuana since 1970. However, 38 states have legalized some form of marijuana use for their citizens, with many states passing new and expanded laws within the last couple of years. In 2021 alone, six states—including Connecticut, New Jersey, New York, and Virginia—have legalized marijuana.
Across the states, marijuana legalization has taken many forms. Some states have legalized medicinal marijuana, while others have also legalized its recreational use, sale, and cultivation.
2. How should employers approach drug screening for marijuana?
Given the changing laws in various states, some employers have considered removing marijuana from the drugs they screen for during the hiring process and after employment. If you hire in states where marijuana has become legal recreationally and medically, you may choose to test only when there is suspicion of use or intoxication while on the job.
Keep in mind, even though marijuana has become a legal substance across many states, you can still screen candidates for it in many cases. As a matter of policy, many organizations continue to regulate marijuana impairment in the workplace. For example, random screening and testing employees after accidents remain common practices in high-risk work environments such as manufacturing, construction, and mining.
In some locations, your organization may be barred from including marijuana in your drug screening program. For example, in New York City, employers are prohibited from testing prospective employees for marijuana as a condition of employment. Exceptions are possible only for candidates applying for safety-sensitive positions.
3. Now that marijuana is legal in so many states, isn’t a drug-free workplace a thing of the past?
Not necessarily. No state marijuana law requires employers to allow employees to use marijuana at the workplace or work under the influence of marijuana. Therefore, maintaining a drug-free workplace is still possible.
There are many public and private sector organizations continuing to operate a drug-free workplace. Many have safety-sensitive roles where drug use is never allowed, so testing before and during employment is necessary and common. Examples include public safety roles, transportation drivers, and positions where employees operate machinery or work with hazardous substances.
Moreover, if your organization is a federal grant recipient or federal contractor, maintaining a drug-free workplace is not a choice. You must meet requirements set by the Drug-Free Workplace Act, and take specific steps to implement zero-tolerance workplace drug policies, with no exceptions for marijuana.
4. What about reasonable accommodations for medical marijuana users under the Americans with Disabilities Act (ADA)?
The Americans with Disabilities Act (ADA) does not offer protections for medical marijuana use, but some state disability discrimination laws do. In a recent report, the Insurance Information Institute referenced several state laws—for example, Arizona, New York, and Nevada—where there are workplace disability protections afforded to medical marijuana users.
5. How do the new marijuana laws impact criminal background check results?
State marijuana laws do more than legalize and regulate marijuana use. Many have also decriminalized marijuana possession, making it a simple misdemeanor where before it may have been a felony offense. Therefore, these classification changes may impact the kind of information included in background check results.
Even in states where recreational marijuana is not yet legal, marijuana possession may no longer be considered a serious criminal offense. For example, effective August 2021, Louisiana will consider marijuana possession a misdemeanor rather than a felony, punishable by only a small fine and no jail time. Given the changing classification of drug offenses in this and other states, you’ll need to be sure your background screening company has the processes in place to report the crime levels dictated by your policies.
In addition to changing marijuana laws, many state ”Ban the Box” laws also place limits on when you can ask candidates about criminal history, including past drug convictions. For example, in Virginia, employers are prohibited from asking a candidate about arrests, criminal charges, or convictions for simple possession of marijuana. Beginning in July 2021, the state also required criminal records related to marijuana possession and intent to sell to be automatically sealed. In such cases, your screening company must make sure background check results don’t include records which may be sealed, expunged, or barred from use in criminal background checks.
6. Which marijuana laws should we follow when hiring remote employees in different states?
When your organization is located in one state and your employees may be working in one or more other states, you need to be sure your hiring practices in one location don’t violate laws in others. For example, if your organization is based in Indiana, where there is no marijuana law, but you hire in bordering states such as Illinois and Michigan, where marijuana is legal, your hiring process should consider the laws in all three states.
Though you may choose to remove marijuana testing in all locations, you don’t have to. Instead, you can choose to continue screening candidates for marijuana in all locations where it is allowable by law, and remove it only in locations where it is prohibited.
7. What can we do to keep up with changing marijuana legislation?
With states adding new laws and amending existing ones, you need to be vigilant in reviewing your drug screening policies and practices continually.
Marijuana legislation affects both your background screening and drug screening processes, making it critical to assess new compliance risks and opportunities to streamline your practices in accordance with local law. By working with a knowledgeable screening provider who understands the nuances of state laws, you can maintain a compliant and efficient screening program aligned to your policies and goals.
Get peace of mind when it comes to compliance risks.
Today’s marijuana laws can create what seems like a minefield of potential compliance risks for your organization. And with sometimes conflicting state laws, it can be challenging to determine where and how you should change your policies and practices to stay in compliance. However, with a trusted screening partner that understands your goals and how your hiring process is affected by new and changing legislation, you can get the guidance you need to incorporate applicable laws into your policies and practices.
For information about the latest updates in marijuana legislation, read our Human Resources Guide to Marijuana Legislation.