The only thing bigger than Presidential nominees Clinton and Trump on 2016’s general election ballots was marijuana.
Going into the election, only four states and one district had legalized recreational marijuana: Colorado, Washington State, Oregon, Alaska, and Washington D.C. This represented about 5% of the population of America. Meanwhile, twenty-five states had some form of medical marijuana laws on the books.
Now that the election is over, four more states, California, Nevada, Maine, and Massachusetts, now allow legal recreational use and sales (Arizona’s measure did not pass), while Florida, North Dakota, Arkansas, and Montana voted to allow for medical marijuana. At this point, only five states remain with no medicinal or recreational use allowed: Idaho, Indiana, Kansas, Mississippi, and South Dakota.
What does all this legal weed mean for workers in the United States?
The reality is that marijuana remains classified as a Schedule 1 drug by the federal government, which says that cannabis is a drug with “no currently accepted medical use and a high potential for abuse.” Other drugs in this classification include heroin, ecstasy, and LSD. While President Obama removed a major barrier to marijuana research earlier in 2016, allowing for a broader scientific study of the drug that is already being used medicinally in half the states in the country, he fell just short of convincing the DEA to reschedule marijuana. Also, even though the federal government has been dissuaded from pursuing charges against dispensaries and cultivators in states where marijuana is legal, that doesn’t mean that employers are obligated to allow it in the workplace.
Just because the law says that an adult is free to use marijuana does not mean that employers are barred from continuing to prohibit the hiring and continued employment of those who indulge. In many industries, it is imperative that employers ensure that its workforce is not under the influence of drugs or alcohol, and since marijuana is still illegal at the federal level, employers are free to continue operating under the same zero tolerance policies they have had for years. And yes, this applies to employees using the drug legally under their state’s medicinal marijuana laws, too. As the law currently stands, an employee with a medical marijuana card who is using it to treat a disabling condition can still be fired for a positive drug test.
What rights do employees have, then?
Employees are still protected under the Fair Credit Reporting Act (FCRA) as it relates to drug-testing. Under the Act, employers are allowed to test an applicant only after a conditional offer of employment has been made. This means a candidate cannot be screened for drugs before an offer is made, and then be terminated for testing positive for marijuana (or any other drug).
Still, that’s scant protection when one in five Americans has access to legalized recreational or medical marijuana. The best bet for most employees is to continue to abstain from drug use, no matter what the law says about marijuana in their state.
We at The Cedalius Group, the employment background screening provider you can trust, understand the complexities of changing attitudes and laws concerning marijuana in the United States. We are committed to bringing you the most comprehensive, up-to-date information available so that our clients can shape their policies and procedures accordingly. If you have questions about your drug testing policies, give us a call at 404.963.9772 today, or contact us online.
The Cedalius Group offers insight into the background screening industry for educational purposes. We always recommend you consult with your legal counsel to determine practices that best suit your business needs.