Legalizing Marijuana – What Does This Mean For Your Background Check?

We’ve talked at length this week about how legalizing marijuana affects your job prospects or your current employment. A lot of this has been from the employee’s perspective – what you need to know, how you can avoid trouble, what you’re risking.

ICYMI, here’s links to those posts on ActiveCare:

Yes, You Can Still Be Fired For Blazing Up

What You Do In Your Free Time Can Cost You

What we haven’t explored, yet, is the choices employers have when it comes to handling marijuana use by your employees. Must you allow them to do it on their own, free time if the law says recreational use is legal? Are the laws still on your side if you prohibit your employees from toking up? How will your hiring process be affected, especially with the use of background checks?

Although this issue mostly pertains to Washington and Colorado (the only two states who, so far, have moved to legalize recreational use of pot) the pro-pot movement show no signs of slowing down and will likely come up in your state in the next decade. Thus, this information is applicable to everyone. Here’s what you need to know.

If the law says it’s legal, my employees can smoke pot all they want, right?

Not if you don’t want them to. Even if your state legalizes recreational pot use, marijuana is still considered a violation of federal law. You, as an employer, are protected under this law to create a zero-tolerance drug policy for your workplace, if you wish to do so. Federal employees and contractors are already held to this standard by the Drug-Free Workplace Act of 1988. If you do allow your employees to smoke weed in a state where it hasn’t been decriminalized, they can be arrested for drug-related and/or impairment-related charges. Employees who smoke pot in a state where marijuana has been decriminalized are pretty safe from getting arrested (unless they’re selling it without a license or buying it from the guy down the street) since most marijuana-related  arrests are made by local and state law enforcement agencies and not the Feds (who would be concerned with upholding federal law).

The final word is this: Until (or if or whether) marijuana becomes legal at the national level, you – the employer – are well within your right to create a zero-tolerance drug policy. This means that if one of your employees fails a drug test, you can fire them no matter what. Even if they were smoking up on their own time.

So, if marijuana does become legal in my state, should I change my drug-policy to keep my employees happy and reduce potential turnover?

That is totally, entirely, 100% up to you. This guy did. But you must consider how having employees who are potentially ‘high’ at your workplace potentially decreases safety and may increase your need for more liability insurance. What your employees do on their own time can still affect your bottom line, especially if you find yourself having to pay more liability insurance premiums. Does having happy, pot-smoking employees who remain loyal to you and still provide the same level of excellence that they previously have mean more to you than paying higher premiums? Or does money speak louder than morale? It’s hard to look at these choices so bluntly, but this may be a question you need to answer sooner than you realize.

The bottom of line is this: At this point, it’s always your choice. But you should still maintain a zero-tolerance policy if you’re in the transportation, education, or health care industries or any other profession where safety is a number one priority.

What about medical marijuana use? Can I allow that?

You can certainly consider it but be sure to run any questions you have by a reputable attorney who is up to speed on the marijuana movement. If you own a business in Arizona, Delaware, Minnesota or Rhode Island, you need to be especially careful of your policies as these states offer some legal protection for employees who are prescribed marijuana.

For now, employers can’t be forced to accommodate an illegal activity and marijuana is still considered illegal under federal law. Employees can petition for exemptions under the Americans with Disabilities Act to allow them to smoke medical marijuana, but you don’t have to comply.

If I do decide to update my drug policy, what do I need to know?

The same rules apply here as if you were updating your entire employee policy handbook. You need to consult counsel and a Human Resources professional, write it down, make it visible, gauge employees’ understanding, and enforce without deviation. Here’s some suggestions:

  • If you update your drug policy, make sure all of your employees are aware of the changes. Don’t just send an email with a message of an update, though. Make them sign for a hard copy so that way you’re covered if they fail a drug test and say they never received the new policy.
  • Post signs of your drug policy in visible areas. There are Drug-Free Workplace signs available but if you are 420-friendly, you can find those, too. Make sure the violations and consequences are listed, too.
  • Include unacceptable activities in your policy handbook, too. So it’s OK for employees to smoke weed when they’ve clocked out, but you still don’t want them bringing a bong into work? Put it in writing.
  • Update your background check and screening procedures. Even if you’re going to allow marijuana use, are you still going to test for it? Your employees have a right to know what your drug testing policies are, who will be handling them, who is subject to the screenings and how often they’ll be run.

Have some other tips for us? Would you allow your employees to smoke weed on their own time? Have you already updated your drug-use policy in light of Colorado and Washington’s moves? We’d love to hear your story.

This entry was posted in Applicant-Entry Solutions, Background Screening, Clinical Services, Criminal Records, DOT Employers Clinical Services, Driver’s Records, General, Human Resources, Industry Solutions, News and tagged , , , , , , , by Patricia Carlson. Bookmark the permalink.

Patricia Carlson is a content writer who specializes in B2C and B2B inbound marketing. She blogs regularly for clients about the background screening and finance industries, and generates newsletters, white papers and email campaigns for a variety of businesses. Patricia also produces a heavy rotation of editorial material for home design, law enforcement, and family magazines. She’s been writing professionally for more than a dozen years, and for Active Screening for more than two of those. Check out LinkedIn for a roster of Patricia’s clients and links to published works. When she’s not interviewing sources or researching trends, she’s living a fast-paced Florida life questioning the antics of her two young children, partner and mischievous cat. Patricia loves to talk tennis and TV on Twitter – give her a shout @pattycfreelance.

 
        
Active ScreeningBarbara S.
Healthcare Industry

"Here at Holland Hospital, we have been extremely pleased with Active Screening. The report results come back quickly, usually within 24 hours or less.  The staff at Active Screening is easy accessible, knowledgeable and responds to our questions promptly."

Active ScreeningLynn C. Staffing Industry

"Benton Mobley has been and remains my Main point of contact at Active Screening from the beginning; so aside from the comfort of dealing with the same person all these years, there is the most important fact of all;  customer satisfaction. Benton knows the business like the back of his hand; and that is what we need in our fast paced industry of staffing. He is the all-time BEST!  MY employer, Leslie, believes in the notion that great service deserves to be rewarded, so we are here for the duration.We get immediate and personalized attention for any and all concerns we need addressed, and in the staffing industry, this is vital."

Active ScreeningCayce R. Education Industry

"My experience working with Active Screening for our background check process has been very positive.  The reports are almost always completed in a very timely fashion. The information reported appears to be very thorough and accurate.  On the rare occasions that we have questions or problems, the customer service team is always very quick to respond and resolve the issue.  Overall, I am very pleased with the service I receive from Active Screening."

Active ScreeningCraig H. Staffing Industry

"Your customer service is excellent.  The turn around time on background checks is quite fast.  Excellent work.  I haven't had a single problem."

Active ScreeningJackie C. Education Industry

"I wanted to thank you and your staff for being so patient and working so diligently with the Human Resources staff during our recent endeavor to process all of our work study students through background screenings.  We have never had to process so many requests within such a short period of time before, but thanks to you and your staff we made it. Again thank you, we made a good choice in selecting Active Screening."

Active ScreeningLindsey W.  Financial Industry

"I wanted to share my appreciation for your wonderful service...switching background screening companies could have been a stressful task, but your company made the transition seamless. Your website was extremely easy to navigate and the turn around time has been great. I appreciate when information is missing or entered incorrectly during ordering, your company notifies me right away to ensure that my error does not hold the reports results, causing us a delay in hiring an individual...Active Screening has been great to us and I would definitely refer them to others."

Active ScreeningTerry S. Property Management

"Working with Active Screening over the last year and half has been a wonderful experience. They deliver fast and informative results at the best price. Their level of professionalism and the speed they respond to our issues is a benefit that any company can value from. I would highly recommend using Active Screening and their amazing team."

Active ScreeningYulesis D.  Staffing Industry

“Interactive Response Technologies (IRT) has more than 2,000 employees at multiple locations across the United States. IRT has been using Active Screening to conduct criminal background checks since 2006. During this time, Active Screening has consistently returned accurate reports, usually with less than 48 hours turnaround. If there are any problems or inconsistencies with the reports, their staff has called to notify us so that we can attempt to rectify the situation. The staff at Active Screening is always courteous and congenial over the phone. In our opinion, Active Screening is outstanding.”

Active ScreeningAndy N. Software Provider

 "Active Screening has helped us screen our applicants in record time for more than two years.... we are very impressed with the professionalism and speed with which their service team responds to our questions. They understand our needs and are a pleasure to work with. I highly recommend them."

Active ScreeningCassie J. Staffing Industry

"The Active Screening team is very informative; they provided a complete consultation on all the services, so I understood what I needed, and saved me hours and hours of my time learning the various services. Their reputation, as being on the cutting edge of employment screening best practices, certainly held true in this instance. The expertise they brought to the table was invaluable to our understanding of our applicants backgrounds. I highly recommend Active Screening to anyone with the task of screening large numbers of applicants and needing reliable customer support."

Active Screening

With over 20 years of law enforcement experience I can attest to the fact that the strongest predictor of future criminal behavior is a person’s criminal history. As the manager of campus safety at my church, I depend on Active Screening to provide a thorough assessment of every criminal history background check we request. For more than 3 years, Active Screening has been faithful to this task with timely, accurate and reliable service.

Active Screening

We have benefited from knowing that we are not exposing the communities we work with or ourselves to unnecessary risk. We continue to have a perfect record in that we have never had a serious incident with a trip participant causing harm or acting inappropriately with any community member or fellow team member- thank goodness!

Active Screening

I would highly recommend any association or organization who conducts background checks to use Active Screening. In addition to my involvement with WAHA, I am an officer in a corporation with over 500 employees who provide treatment, mental health, and correctional services for children and adolescents. Our company is mandated by law to do comprehensive background searches and I can say with the utmost sincerity that Active Screening product rivals that of any government or other private sector process.

Active Screening

We have used Active Screening and their solution VERITY to screen all our coaches and volunteers working with youth. The online system gives us an easy and cost-effective solution to collecting forms and payments from our applicants...and we simply login to view the results of who passed or failed. It's so easy....thank you Active Screening.