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May 1, 2019

Marijuana and Your Employee Background Checks

The entire topic of marijuana legalization is extremely confusing, especially when it comes to staffing. Some states are fully legalizing it for adults, while others permit medicinal use only. But on the federal level, marijuana is still completely prohibited. So, what does that mean for staffing firms that need to screen and background check employees for their clients?

What is the current state of legalization?

The situation is in flux, but as of this writing, marijuana remains classified as a Schedule I substance under the Controlled Substances Act in the United States. Typically, marijuana use as relates to legalization is classified as either Adult Use, often referred to as recreational use and Medical use. Currently, ten states and the District of Columbia permit recreational use and 33 states permit medical use marijuana.  

How are employers reacting?

It varies with the nature of the work. For jobs requiring the use of heavy machinery, for example, marijuana use is generally forbidden by the employer. Other employers may take a more relaxed approach, particularly as it relates to off-the-clock usage. Still, other employers maintain a zero-tolerance policy in order to avoid liability if an employee is impaired and because of continued federal prohibition.

What are your rights as a recruiter?

According to Society for Human Resource Management (SHRM), state law may not allow employers or staffing firms to consider misdemeanors or expunged records, pending charges or convictions that occurred more than a certain number of years prior to the application, depending on the state. Background checks can turn up previous drug arrests or if a candidate has been issued a medical marijuana card.

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What about drug usage and testing?

It again depends on your state. If you are hiring in a state that has legalized marijuana, you may need to revisit your drug policies. No one expects you to allow working impaired to go unchecked. Alcohol is legal but no one is supposed to come to work intoxicated. Take a look at the terminology you use in your employee documentation. If you have individuals with drug or alcohol problems, the termination or disciplinary process will go much smoother with clear expectations set out in your company’s official policy.

How does ban the box come into play?

The number of states and cities adopting a ban-the-box law is growing. This policy prohibits employers from asking if a candidate has been convicted of a crime until the interview or offer stage. Consider how this law may affect your hiring process as relates to drug use or convictions. You can find out your local ban-the-box status here.

Still not sure how to handle background checks?

With the legalization of marijuana on a consistent rise, recruiters need to ensure their background checks remain up-to-date. EmployStream makes background checks a seamless part of your onboarding process through integrated background check providers, to assist with your compliance and your clients, so you can hire with confidence. Get in touch and we’ll be happy to walk you through the process.

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