Marijuana legalization passed in several states, but remains illegal at the federal level. Drug convictions are some of the most common charges to show up on a criminal background check. Many of these convictions involve marijuana, a substance once strictly prohibited in all states and now available for recreational use in a few regions and medical use in many more.
Recent changes in marijuana legalization have added to the confusion of the criminal background check process.
Federal Law Versus State Marijuana Legalization Law
While recreational use of marijuana is deemed legal in many states, it remains illegal at the federal level. As such, employers can still terminate employment if they discover that employees have used marijuana recently, especially in the workplace. Federal law protects employers’ right to create a zero-tolerance drug policy, enforced, in part, through background checks. Thus, regardless of whether businesses are based in recreational marijuana legalization states, medical marijuana legalization states, or states in which all use of cannabis is prohibited, it is perfectly acceptable to bar current drug users from employment if their drug use could potentially harm customers or other employees. Background checks remain a thorny issue, so it is important to use discretion and get legal counsel. Regardless of federal legality, it may be deemed discriminatory to bar somebody with an old marijuana conviction from, for example, a retail job.
The Role of Drug Testing
Many employers continue to use drug testing to determine whether new and current employees have abided by company drug policies. These tests are often inaccurate, as cannabis may linger in the system for up to six months after it has been used. However, for some employers, any evidence of past cannabis use is grounds for termination or non-hiring. For employers who utilize drug testing, it is imperative that employees are informed of the role of drug testing in the workplace, who is subject to drug tests, and how often they will occur. Policies regarding drug testing and the termination of those with drug-related convictions should be clearly outlined in the employee handbook.
For businesses located in states that permit recreational marijuana legalization, the decision of whether to enforce a zero-tolerance policy ultimately comes down to personal preferences. There are no legal consequences for those who opt for the zero-tolerance approach. In fact, in many industries, this approach is necessary for workplace safety, particularly in childcare, health care, and transportation. Accusations of discrimination may arise for those who bar employees with previous drug convictions, so drug testing may be a more reliable means of weeding out drug users.
Source: http://www.drugfreebusiness.org/Media/documents/IBH_workplacetesting.pdf
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