Over the past several months, five states — New Jersey, New York, Virginia, New Mexico, and Connecticut — have joined the growing list of states where possession and, or use of marijuana is legal.
The United States seems to be headed quickly toward a future where marijuana is not considered the dangerous drug it once was, the possession or use of marijuana is not considered a crime, and adults can be trusted to enjoy marijuana responsibly.
Marijuana Use in the News:
The 30-day suspension of Sha'Carri Richardson, the flamboyant sprinter and first place finisher in the 100-meter dash at the U.S. Olympic trials, over a failed drug test for THC, the drug in marijuana, has already ignited calls for change in the international sports world. Richardson admits she used marijuana in Portland Oregon, where it is legal, to cope with stress. A 2018 study published in The Clinical Journal of Sport Medicine found "no evidence for cannabis use as a performance-enhancing drug," making the suspension even more controversial. There are many medications on the banned substance list that have been questioned by athletes and coaches, such as legal decongestants and cold medicines. When asked about her suspension, President Joe Biden told reporters that the "rules were the rules," but added, "whether those should remain ... is a different issue," and this is the same place many employers find themselves when considering drug testing as part of employment screening.
What does this mean for consumer reporting agencies (CRAs) and other background screening companies?
Most importantly, it means keeping yourself informed and staying on your toes.
Marijuana laws are changing quickly, and so are attitudes about marijuana use. Providing your end-users with the most accurate, actionable background screening information requires staying abreast of this evolving legal landscape.
A Closer Look: Marijuana Law, Enforcement, and Expungement Trends Around the Country
The shift towards marijuana legalization would be easier to respond to if it was happening the same way everywhere. It’s not. All 18 states that have legalized marijuana so far allow possession and use of a certain amount — although not always the same amount.
For example, New Jersey’s new laws allow people over 21 to possess six ounces or less of marijuana. Possessing more than that is considered a fourth-degree crime (the lowest level felony in New Jersey law).
Virginia limits possession to a single ounce. However, those who possess more than an ounce in Virginia, but less than a pound, are merely subject to a $25 or less civil fine.
Each state sets different regulations on growing marijuana for personal use, as well, typically in the form of the number of plants allowed per household.
Selling marijuana without a license remains a criminal act in most states. But here, too, the definition and severity of the crime differ from state to state.
In New Jersey, people caught selling an ounce or less of marijuana are let off with a written warning for their first offense. (Subsequent offenses are considered fourth-degree felonies.) Other states are less lenient, and the unlicensed sale of any amount of marijuana comes with the risk of significant jail time.
A critical question for CRAs is the status of people who have previous marijuana convictions on their records. In most states where marijuana is legal, people with prior convictions may petition to have their court and police records expunged. The expungement process differs from state to state.
Some states have ordered automatic expungement of eligible records. However, “automatic” doesn’t necessarily mean right away. For example, state police in Virginia have until July 1, 2025, to determine which offenses in the Central Criminal Records Exchange qualify for automatic expungement.
Employment Drug Screening and Marijuana Decriminalization
A few — but not all — of the states that have legalized marijuana have also addressed pre-employment drug testing.
For example, Nevada has banned most employers from testing new hires for marijuana. (Employers in Nevada can still fire employees for working under the influence of marijuana.) New York law forbids employers from discriminating against employees who partake in cannabis legally outside of work.
Meanwhile, employers can continue enforcing zero-tolerance marijuana policies in states like Michigan.
(In states where employment drug screening for marijuana is not restricted, legal carve-outs may still exist for registered medical users.)
Legal issues aside, as marijuana prohibitions disappear, so do employer concerns surrounding its use.
More employers are choosing to drop their zero-tolerance policies, look the other way on test results, or forego testing altogether. As one employer told the Los Angeles Times, “What are we going to say — you can’t do something that’s legal?”
Quest Diagnostics reports that positive cannabis tests are up among American workers — 2.7% in 2020 vs. 2.5% in 2019 — but fewer employers are including marijuana in their testing panels. Many employers may be eliminating drug tests to attract job seekers during the current labor shortage.
This June, Amazon announced it would no longer test any of its employees for marijuana and would advocate for legalization and expungement at the federal level. Other large employers are sure to follow suit.
Tips for CRAs Regarding New Marijuana Laws and Drug Testing Trends
In this article, we’ve tried to provide a sense of what the law says in states that have legalized marijuana. We strongly encourage you to seek out the specific regulations in each state where your background screening business accesses criminal records.
You’ll want to ensure that you are not reporting records that are no longer reportable. Keep in mind that in many jurisdictions, record-keeping may not yet have caught up with the law.
The shifting legal landscape around marijuana offers an opportunity for your business to serve your clients as expert advisors.
Talk to your clients about the laws in their states, and make sure they understand the potential impact on hiring and drug testing. Encourage your clients to reevaluate their hiring criteria so that it doesn’t conflict with these new laws.
Finally, consider offering drug tests without marijuana panels for those that no longer wish to screen for cannabis. If marijuana’s current legal and societal trajectory holds up, cannabis-free drug testing may soon become the norm.