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Background Screening and the Legalization of Marijuana

Posted by Ryan Howard on Fri, Jan 12, 2018

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*Note: This post has been updated from its original post date of November 10, 2016.

As of January 2018,  8 states and Washington D.C. have passed broad legislation for the legalization of marijuana for recreational use and 29 states for medical use. States that now allow adult citizens to smoke weed include Colorado, Alaska, Oregon, Washington, California, Maine, Massachusetts and Nevada. Other states have passed laws allowing marijuana for medical use. This list may not be comprehensive and could be outdated as more legislation is passed. We will continue to update when possible.

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 January 2018. 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. 

  • Alabama - Medical marijuana is permitted for the severe epileptic conditions only.
  • 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.
  • Arkansas - Medical use as of November 2016 but rules and dispensaries are still being figured out.  Prohibited near on on property of schools and childcare centers, correctional facilities, while driving, and in public places. Learn more.
  • 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. Buying recreational pot from dispensaries began 1/1/2018 but not allowed to be sold between 10 pm and 6 am.  Fresno and other cities are banning the sales for recreational use.
  • 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.
  • Florida - Medical use legislation passed in June, 2017. Patients and caregivers must be 21 and over. Learn more.
  • Hawaii - Medical use. 
  • Illinois - Medical use. No jail time for possessing small amounts. 
  • Louisiana - Medical use. Physicians may "recommend" rather than "prescribe" to protect their medical licenses since the doctors are federally prohibited from prescribing.  Dispensaries and legal protections for those who provide the drug are still being worked out.
  • Maine - Medical and Recreational use. Must be 21 to grow and use. Not allowed in public places, while driving or driving under the influence. Maine is still considering legislation to regulate and tax the sale of pot. 
  • MarylandMedical use. No jail time for possessing small amounts. 
  • MassachusettsMedical and Recreational use. Must be 21 to grow and use. Smoking is not allowed in public places. Sale is prohibited until regulations for edibles are completed. Retail pot shops to open in July 2018. Employers are allowed to prohibit smoking it in the workplace. Local governments are allowed to restrict use and sale in public buildings or near schools.  Learn more. Some Massachusetts landlords may also prohibit smoking pot since it is still federally restricted.
  • Michigan - Medical use. 
  • MinnesotaMedical use. No jail time for possessing small amounts.
  • Mississippi - Law passed in 2014 to allow medical use for severe epileptic conditions but have had little success rolling it out.
  • 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.
  • North Dakota - Medical use. The medical marijuana program and rules are still being rolled out
  • 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 use. Must be 21 and require the drug for medicinal purposes to grow. Not allowed in public places, while driving or driving under the influence. 
  • West Virginia - Medical use legalized for cannibis-infused products
  • 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.  Employers may fire employees for illegally using the drug, especially if it could cause harm to others. 

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. A recent announcement by Attorney General Jeff Sessions included a withdrawal of federal guidelines that would limit prosecutions of businesses that sold pot legally. This is an ongoing challenge for more states passing their own legalization laws. 

See How VeriFirst Performs  Background Checks and Drug Screening

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: Types of Background Checks