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Background Screening and the Legalization of Marijuana

Posted by Ryan Howard on Thu, Nov 10, 2016

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Current election results now show that 4 more states have passed the legalization of marijuana for recreational use. States that now allow adult citizens to smoke weed include Colorado, Alaska, Oregon, Washington, California, Maine, Massachusetts and Nevada. Other states passed new laws allowing marijuana for medical use. In total, there are 25 states, plus Washington D.C., that allow the use of marijuana in some way. See the full list below.

These results may have employers concerned about background screening and marijuana use on the job. Here are some things to consider.

Full List of States and their Marijuana Laws

The list below presents the states with marijuana legalization and the details as of November 2016. In the states that have legalized recreational use, marijuana is regulated the same as alcohol. The research seems to show that states that allow possession of small amounts go on to later pass laws allowing legalization of recreational use. 

  • Alaska - Medical and Recreational use. Must be 21 to grow and use. Not allowed in public places, while driving or driving under the influence. Employers are allowed to ban marijuana use, transportation, possession, sale, growth, or transfer of marijuana.
  • Arizona - Medical use.
  • California - Medical and Recreational use. Must be 21 to grow and use. Not allowed in public places, while driving or driving under the influence. Possession at a school or daycare where children are present is illegal. 
  • Colorado - Medical and Recreational use. Must be 21 to grow and use. Not allowed in public places (unless permitted), while driving or driving under the influence.
  • Connecticut - Medical use. No jail time for possessing small amounts.
  • Delaware - Medical use. No jail time for possessing small amounts.
  • Hawaii - Medical use. 
  • Illinois - Medical use. No jail time for possessing small amounts. 
  • Maine - Medical and Recreational use. Must be 21 to grow and use. Not allowed in public places, while driving or driving under the influence. 
  • MarylandMedical use. No jail time for possessing small amounts. 
  • MassachusettsMedical and Recreational use. Must be 21 to grow and use. Cities to vote on allowing use in commercial establishments. Employers are allowed to prohibit smoking it in the workplace. Local governments are allowed to restrict use in public buildings or near schools. 
  • Michigan - Medical use. 
  • MinnesotaMedical use. No jail time for possessing small amounts.
  • Montana - Medical use. 
  • NevadaMedical and Recreational use. Must be 21 to grow and use. Not allowed in public places, while driving or driving under the influence. Employers are allowed to ban in the workplace. 
  • New Hampshire - Medical use. 
  • New Jersey - Medical use. 
  • New Mexico - Medical use. 
  • New YorkMedical use. No jail time for possessing small amounts.
  • OhioMedical use. No jail time for possessing small amounts.
  • OregonMedical and Recreational use. Must be 21 to grow and use. Not allowed in public places, while driving or driving under the influence.
  • Pennsylvania - Medical use. 
  • Rhode IslandMedical use. No jail time for possessing small amounts.
  • VermontMedical use. No jail time for possessing small amounts.
  • WashingtonMedical and Recreational use. Must be 21 to grow and use. Not allowed in public places, while driving or driving under the influence. 
  • Washington DCMedical and Recreational use. Must be 21 to grow and use. Not allowed in public places, while driving or driving under the influence. 

Employer Rights

In some cases, the laws explicitly note an employers' right to prohibit employees from using, possessing or selling pot in the workplace. Even if they don't, employers still have rights when it comes to marijuana in the workplace. Under federal law, marijuana use is considered a Schedule 1 Substance under the Controlled Substances Act. The DEA isn't actively getting involved in the approved laws in these states, however, the Justice department is allowed to step in if states don't regulate use or if safety issues emerge. Employers may still fire employees for illegally using the drug, especially if it could cause harm to others. 

Background Checks and Drug Testing Demo

Drug Screening

Employers are not allowed to do random drug screenings unless there is reasonable suspicion of drug use or if the employee is regularly operating heavy machinery. Reasonable suspicion includes slurred speech or erratic behavior, another employee reporting drug use, evidence of drugs sold or possessed in the workplace or a workplace accident.

Drug testing in the workplace is generally regulated at the state rather than the federal level unless there are federal employees. Most other times, a drug screening policy is at the discretion of the employer and employees must be educated on clear, written policy about drug use in the workplace. 

Drug-screening program best practices: Drug Screening FAQ for Human Resources Professionals.

The legalization of pot may mean that more are willing to smoke on their own free time but that does not mean that employers must give up their rights to a fair and safe workplace. When employers have legitimate reasons for suspecting drug use, they can certainly screen the employee. If marijuana drug use shows up, the employer has no way of knowing if the drug was used on the job or even weeks before. With an established and clear drug policy against drugs, however, the employee can still be terminated legally.

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Topics: drug testing