A Human Resources Guide to Marijuana Legislation

After California became the first state to legalize medical marijuana in 1996, other states followed, in part because of overwhelming voter support. According to a 2021 Pew Research Center survey, 91 percent of adults believe marijuana should be legal. Thirty-one percent of those surveyed favored legal medicinal use only, and 60 percent said they supported both medical and recreational use.

In recent years, state marijuana legalization has intensified at a rapid pace. Several states have migrated from legal medical marijuana to legalizing recreational marijuana use, while others have also established state programs to regulate marijuana sales and cultivation. 

Along with the tide of state marijuana legalization, there are also signs of a possible federal law. In late 2020, the House of Representatives passed a bill to decriminalize marijuana at the federal level. Although the Senate has not approved it, President Biden has indicated his support.

For example, when marijuana use becomes legal in a given geographical area, you need to make critical decisions about when to test for it during the hiring process and later in employment. Determining what is allowable under state law can be even more challenging when you conduct your hiring process in multiple locations.

Making decisions about when and in which locations you should screen candidates and employees for marijuana is further complicated by frequently changing laws. Moreover, a state’s marijuana legalization doesn’t necessarily equate to losing your ability to test and make employment decisions based on the results. In Colorado, for example, an employee may be terminated from employment for testing positive for marijuana, even if the employee used it in compliance with the state’s medical marijuana law.

Marijuana laws can also impact your processes for conducting employment background checks. As you operate your background screening program, you’ll need to review criminal record check results through the lens of laws that have decriminalized the sale, use, and possession of marijuana. For example, a candidate’s felony possession of marijuana five years ago might now only amount to a misdemeanor.