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.
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