Marijuana and Background Checks: What You Need to Know in 2016

Marijuana advocates have celebrated a couple of banner years in their movement to legalize the substance, or at least allow its use for medicinal purposes. Four states and Washington, D.C. have already passed legislation permitting recreational pot use; another 10 states are expected to put similar measures on ballots in 2016.

Here’s the list:

  • Arizona
  • California
  • Florida
  • Maine
  • Massachusetts
  • Michigan
  • Missouri
  • Nevada
  • Rhode Island
  • Vermont

If voters in all of those states move to make smoking weed legal (for medicinal purposes or otherwise), that could lead to a lot more people toking up. This type of legislation would also have a serious impact on the screening industry and how employers use background checks as part of their employment vetting procedure.

Employers’ Rights

So, let’s say your state legalizes recreational marijuana use. 

Just because the law says an adult is free to smoke weed doesn’t mean that you can’t fire someone or eliminate candidates from consideration if they fail your drug test. Yes, you can still sack someone for blazing up.

You are still well within your legal right to impose sanctions on employees and candidates for failing a drug test, including marijuana.

Furthermore, any hiring procedure and policy worth its salt will have some stipulation about drug use. Drug testing is most likely routine for any healthcare, education and transportation position, and is probable for many other industries like security and finance.

Eliminating employees or candidates who test positive for drugs is imperative for many reasons, including:

• maintaining workplace safety

• improving job performance

• keeping liability insurance premiums affordable

• reducing likelihood of lawsuits

• maintaining your company’s reputation

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.

Zero-tolerance policies and keeping employees bound by your workplace regulations is extremely important in border state situations. Consider North and South Dakota. Neither state allows marijuana, but its neighbor to the East – Minnesota – will permit the substance in 2016. Companies situated along those state’s borders undoubtedly have employees who live in Minnesota. Is everyone aware of how the new law affects workplace regulations when it comes to marijuana use? We expect there to be a learning curve for all parties involved and that background checks in these border state situations will become increasingly common as a safety mechanism in the workplace.

Finally, you may simply want to keep your all-out ban on drugs because it’s nearly impossible to determine how long marijuana will remain in someone’s body (it fluctuates for everyone). A zero-tolerance policy is often the best defense against any drug-related issues that could crop up.

Employees’ Rights

At this point, employers still yield most of the power. Most courts are still siding with employers when it comes to drug use in the workplace. And, yes, regardless of what your state law says, in most situations marijuana will still be referred to and treated as a drug and federally banned substance.

This doesn’t mean that you don’t have rights as an employee who smokes pot.

The first thing you should know is that employees who smoke pot in a state where marijuana has been decriminalized are pretty safe from getting arrested (unless you’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).

You are also protected by the Fair Credit Reporting Act (FCRA) as it relates to drug-testing. Employers can ONLY test you after they’ve made an employment offer. They can’t screen you for drugs before making an offer and then fire you for testing positive for marijuana.

There is also some continuing murkiness as to whether an employer can drug-test you if they suspect you are not just using, but abusing marijuana off-duty. This will continue to be a hotbed issue as more states are anticipated to legalize marijuana in 2016.

What are your thoughts?

Employers – would you consider changing your hiring and screening procedures if your state decriminalized marijuana?

Employees – would you be more likely to toke up in your free time if you knew pot was legal in your state?

Share your thoughts below. We’ll be tracking this trend all through election season so stay tuned to ActiveCare for updates!

This entry was posted in Background Screening, Clinical Services, 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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