Marijuana and Employment Drug Testing: What’s an Employer to Do?

It’s enough to make your head spin. Marijuana is legal for medical and/or adult recreational use in a growing number of U.S. states. However, testing positive during a drug test can be an issue for job applicants, employees, and employers alike. For employers and HR professionals, we assume trying to keep up with the velocity of new legalization has left you wondering just how these new laws are going to impact your drug testing policies.

From here on out, successfully navigating legalized marijuana legislation is going to be a challenge for organizations. Published statistics all point to increased marijuana use over the next five years (fueled in part by the COVID-19 pandemic), and U.S. legal marijuana market revenues are projected to reach $42 billion by 2025.

Marijuana and Federal Law

At the federal level, marijuana is classified as a Schedule I substance under the Controlled Substances Act. Schedule I substances are considered to have a high potential for dependency and no accepted medical use, making distribution of marijuana a federal offense. And in spite of ongoing legalization at the state level, this federal classification has not yet changed. As such, when it comes to drug testing, there is no one-size-fits-all approach to developing a program.

Because cannabis use remains illegal under federal law, employers within federal government regulated industries must maintain employment policies requiring pre-employment and random drug testing. While non-federally regulated employers are not required to include drug testing, keep in mind that there are still states and local governments that still enforce marijuana laws, and may require drug screening for certain positions.

Marijuana and State Law (Currently)

Legal use of marijuana (medical and recreational) varies from state to state. In 36 states, the District of Columbia, and the territories of Guam, Puerto Rico, and the U.S. Virgin Islands, it is legal for those dealing with epilepsy or other particular illnesses to legally use marijuana for medical reasons.

In 15 states—Alaska, Arizona, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, Oregon, South Dakota, Vermont, and Washington—the District of Columbia, and Guam, adults can legally use recreational marijuana.

Evolving Legislation

Let’s take a quick look at New York City, for example. Effective May 10, 2020, New York City enacted a law that considers testing of Marijuana for job applicants a discriminatory practice equivalent to denying employment to a job applicant based on race or gender. This law applies to all job applicants in New York City with the following exceptions:

  • Law enforcement positions
  • Construction workers on public projects
  • Jobs requiring a commercial license
  • Position involving the care of vulnerable persons
  • Positions that impact health or safety of the public

So, where to from here?

Regardless of state or local legislation, you as an employer have the legal right to promote and maintain an alcohol- and drug-free workplace. Likewise, you have the right to test employees (random) and job applicants (pre-employment screening) provided you clearly inform them of your organization’s substance abuse testing policies.

That said, drug screening for marijuana remains quite the debated topic. Especially in how it differs from alcohol, as alcohol does not linger in the bloodstream as cannabis does. A positive test does not mean someone is impaired at that moment. In fact, it’s widely proven that someone can fail a marijuana test days after using marijuana.

Be extremely careful when using marijuana testing results to make employment decisions. For example, if you decide to fire someone holding a medical marijuana card because of a positive drug test, it could potentially be litigated as workplace discrimination. In states like Nevada and New York, those using marijuana for a medical purpose, and holding a legal medical marijuana card, are considered legally disabled and have the same rights as others covered by disability laws which require employers to “reasonably accommodate” medical needs of an employee.

As a final thought, work closely with your legal counsel to:

  • Create standardized policies that effectively dictate all substance abuse and marijuana testing
  • Identify each job and jurisdiction to ensure compliance for each applicant/employee being tested
  • And, work closely with a resource you trust—like A-Check—to regularly confirm which states have legalized marijuana laws and what might be pending

While A-Check does not provide legal advice or counsel, we truly appreciate every opportunity to assist our clients, and welcome questions about your organization’s screening program.

We’re here to help.

Compliance Clips for February 2021

CONSUMER REPORTING

FTC Settles Tenant Background Screening Company Claim
Welcome to 2021, where—no surprise—compliance is still just as important. The Federal Trade Commission has reached a $4.25 million settlement regarding alleged unfair or deceptive acts in connection with background screening reports. More specifically, 1) identifiers did not reasonably match the applicant, 2) inconsistencies existed in identifiers, 3) records did not accurately reflect offenses, and 4) multiple entries existed for criminal records. This particular complaint alleged that reasonable procedures were not in place to assure the accuracy of the criminal and eviction records obtained from a third party vendor for tenant background screening reports. While these screens were presented to landlords and property management companies, it also is a very important example to illustrate why everyone at A-Check is committed to ensuring we meet your organization’s screening requests with attention to compliant business practices.
READ MORE

A Friendly Reminder about FCRA Requirements
As you’re well aware, when an employer uses a third party (like A-Check) to conduct background checks, there are FCRA compliance requirements that must be followed. For your convenience, here’s a very quick checklist of key requirements:

  • Ensure there is a permissible purpose for performing a background check on an applicant/employee, based on their role and responsibilities.
  • Provide clear written notice in a stand-alone document to the applicant/employee that a background check will be conducted, and the resulting information will be used to make an employment decision.
  • Obtain the applicant/employee’s written consent to perform a background check and/or investigative report.
  • If the background check information results in an adverse action decision, a notice of pre-adverse action, along with a copy of the background check results and a copy of the Summary of Your Rights Under the Fair Credit Reporting Act, must be presented to the individual.
  • Allow the individual at least five business days to dispute the information in the background check
  • Upon a final decision, and if adverse action is taken, provide the individual with a final notice of adverse action.

We’re focused on helping you remain compliant, and always welcome your questions.

I-9 AND E-VERIFY

Ongoing Extension: Form I-9 Requirements in response to COVID-19
The in-person requirement for the Form I-9 is temporarily suspended if your company is taking precautions due to COVID-19. The general rule is that an employer must undertake a physical inspection of the document(s) presented by the employee for section 2 purposes.

UPDATE: Because of ongoing COVID-19 precautions, remote I-9 document review has been extended; the expiration date for these accommodations is now MARCH 31, 2021.

The government has suspended the in-person and physical inspection of the document(s) presented by the employee when completing the Form I-9. During this time, an employer can view the document(s) presented by the employee via Zoom or Skype, for example.
READ MORE

Florida
Florida Public Employers: Every public employer, contractor, and subcontractor in Florida must now register with and use the E-Verify system to verify the work authorization status of all newly hired employees. E-Verify is the online system operated by the U.S. Department of Homeland Security and the Social Security Administration that allows participating employers to electronically verify and confirm the identity and employment eligibility of newly hired employees. Both federal and Florida law prohibit employing individuals who are not authorized to work in the United States. Many states have legislation mandating E-Verify use, now including Florida.
READ MORE

SUBSTANCE ABUSE TESTING

What We’re Watching: Potential Legislation
Looking ahead, New York, Connecticut, and Virginia might be three states likely to legalize marijuana in 2021. And 2020 national Gallup polling hits an all-time high with 68% in favor of U.S. legalization. Currently, 36 states have enacted medical cannabis legislation, with 15 also allowing for the adult-use consumption and/or retail sale of marijuana. Although 2021 isn’t a big year for elections, there are indications that New York, Connecticut, and Virginia may consider cannabis law this year.
READ MORE

Illinois
Illinois Gov. J.B. Pritzker recently announced the forgiveness and expungement of about 500,000 criminal cannabis cases, as mandated by the Illinois law that legalized the licensed sale of marijuana starting in 2020. Pardons were issued for 9,210 low-level cannabis convictions, while Illinois State Police have wiped clean more than 492,000 non-felony cannabis-related arrest records. The intent of the law is to reduce the impact of the war on drugs on minorities, who were disproportionately arrested and locked up for cannabis crimes.
READ MORE

New Jersey
Although there have been delays in legislative action, and after voters approved legalization in November, the governor of New Jersey recently reaffirmed commitment to passing laws regarding marijuana. Lawmakers introduced marijuana legislation last November, soon after voters approved cannabis reform. However, since then, it’s been subject to a number of changes and delays in legislative action.
READ MORE

AS A REMINDER: At A-Check, we’re happy to help implement a drug screening program that meets your evolving needs—or make adjustments to the program you’re already running with us. Just give us a call at 877-345-2021 and ask to speak with someone on your Client Relations team.

BAN THE BOX

Nationwide
It’s now reported that as many as three-fourths of U.S. population lives within a Ban the Box jurisdiction. That’s nearly 40 states and 150+ cities and counties nationwide. Ban the Box legislation provides applicants a fair chance at employment by removing conviction and arrest history questions from job applications and delaying background checks until later in the hiring process, or even after a conditional offer has been made. We recently found a great site that clearly illustrates current states and localities with Ban the Box legislation in place.
READ MORE

DATA PRIVACY

New year, new privacy legislation. In 2021, we will likely see a wave of GDPR-like regulatory measures to address data protection and privacy around the world. With information security the focal point of a world that has made the shift to remote activity, this year may prove to be a year where countries not only catch up with their privacy legislation backlogs, but also work to enact 2021 privacy legislation. Here in the United States, three states (California, Nevada, and Maine) have enacted consumer privacy legislation, with 16 more introducing similar laws of their own. And, while there is federal law providing some degree of data protection, efforts are still being put forth to create an overarching framework to govern privacy law.
READ MORE

COVID-19

COVID-19 Rapid Infection At-Home Collection
Although Coronavirus (COVID-19) has dramatically impacted the business landscape worldwide, it is also encouraging to now see employers focused on safely and gradually welcoming their workforces back to the office. Depending on your company’s return to office policies, requiring employees to test negative for COVID-19 prior to an office return may be a viable complement to office cleaning and sanitation practices. We want to quickly let you know that A-Check is here to help by providing COVID-19 testing and surveillance solutions through A-Check’s medical partner networks. Through A-Check’s partnership with Quest Diagnostics, we offer an at-home swab collection option to help diagnose whether your employees currently have COVID-19.
READ MORE

Questions? We’re here to help!

Compliance Clips for January 2021

CONSUMER REPORTING

FCRA Violation Finding
Another reminder regarding the importance of FCRA compliance: On November 12, 2020, Illinois-based a non-bank debt collector and furnisher of consumer information, and the Consumer Financial Protection Bureau (CFPB) entered into a Consent Order requiring that they take a number of affirmative actions to prevent future violations of the Fair Credit Reporting Act (FCRA) as well as pay a $500,000 civil money penalty for past violations, including consumer disclosure and communication.
READ MORE

A Friendly Reminder about FCRA Requirements
As you’re well aware, when an employer uses a third party (like A-Check) to conduct background checks, there are FCRA compliance requirements that must be followed. For your convenience, here’s a very quick checklist of key requirements:

  • Ensure there is a permissible purpose for performing a background check on an applicant/employee, based on their role and responsibilities.
  • Provide clear written notice in a stand-alone document to the applicant/employee that a background check will be conducted, and the resulting information will be used to make an employment decision.
  • Obtain the applicant/employee’s written consent to perform a background check and/or investigative report.
  • If the background check information results in an adverse action decision, a notice of pre-adverse action, along with a copy of the background check results and a copy of the Summary of Your Rights Under the Fair Credit Reporting Act, must be presented to the individual.
  • Allow the individual at least five business days to dispute the information in the background check
  • Upon a final decision, and if adverse action is taken, provide the individual with a final notice of adverse action.

We’re focused on helping you remain compliant, and always welcome your questions.

I-9 AND E-VERIFY

Further Extension: Form I-9 Requirements in response to COVID-19
The in-person requirement for the Form I-9 is temporarily suspended if your company is closed or taking other precautions due to COVID-19. The general rule is that an employer must undertake a physical inspection of the document(s) presented by the employee for section 2 purposes.

UPDATE: Because of ongoing COVID-19 precautions, remote I-9 document review has been extended; the expiration date for these accommodations is now January 31, 2021.

The government has suspended the in-person and physical inspection of the document(s) presented by the employee when completing the Form I-9. During this time, an employer can view the document(s) presented by the employee via Zoom or Skype, for example.
READ MORE

SUBSTANCE ABUSE TESTING

Virginia
On the heels of the November election, Virginia Gov. Ralph Northam announced a plan to establish a path toward marijuana legalization. However, it is assumed that legalizing recreational marijuana will likely be a lengthy process. If legislation passes, Virginia would join about a dozen other states and could become the first state in the South to legalize recreational marijuana. Currently, medical cannabis is legal in Virginia for certain patients.
READ MORE

New Jersey
Because legalized adult recreational use of cannabis is coming to New Jersey—as of January 1, 2021—employers will want to start considering steps toward compliance while proposed laws are in discussion. Here’s a good list of where to focus initial efforts. Specifically, hiring and adverse action guidance for employees based on cannabis use. Likewise, proposed law would permit employers to keep or establish drug and alcohol-free workplaces and employers would not have to permit or accommodate cannabis use in the workplace or during work hours.
READ MORE

Texas
In news we’re watching: Historically, Texas has taken a tough stance on marijuana possession, but Texas lawmakers will once again take another run at legislation to legalize marijuana when the legislature convenes in January, 2021. But while those who are pre-filing marijuana legalization bills have high hopes, most political pundits say they doubt that Texas will decriminalize marijuana in 2021.
READ MORE

Federal
The nation may be one step closer to federal decriminalization of cannabis. A House of Representatives vote, 228-164, removes marijuana from the federal Controlled Substances Act, eliminating conflict between state and federal marijuana laws. The legislation would also expunge some criminal records, allow for more testing and research of the substance, allow veterans for the first time to obtain medical cannabis recommendations from their VA doctors, remove the threat of deportation for immigrants accused of minor marijuana infractions or who are gainfully employed in the state-legal cannabis industry, and create funding for people and communities impacted by the War on Drugs.
READ MORE

AS A REMINDER: At A-Check, we’re happy to help implement a drug screening program that meets your evolving needs—or make adjustments to the program you’re already running with us. Just give us a call at 877-345-2021 and ask to speak with someone on your Client Relations team.

BAN THE BOX

New York City
On December 10, 2020, New York City expanded the scope of its Ban the Box law—the New York City Fair Chance Act (FCU)—further limiting an employer’s ability to take adverse action based on pending criminal charges or arrests, or convictions arising during employment. The amendments expand the FCA’s protections by requiring employers to apply the FCA review process before taking adverse action based on an applicant or employee’s pending, open criminal charges, arrests or accusations. The amendments to the FCA also apply the FCA notice and review process to criminal convictions arising during employment.
READ MORE

COVID-19

A Quick Scam Reminder
In a recent BBB Scam Alert: COVID-19 vaccines have arrived. So have the scams. Watch out for phony treatments and phishing messages while government officials crack down on fake testing kits and vaccines. Scammers are very creative, so be skeptical of anything that seems too good—or crazy—to be true. Double check any information about the vaccine with official news sources. And be aware that none of the vaccines can be currently purchased online or in stores.
READ MORE

Return-to-Office COVID-19 Testing Services for Your Workforce
Depending on your company’s policy, requiring employees to test negative for COVID-19 prior to an office return may be a viable complement to office cleaning and sanitation practices you may already have in place. We want to quickly let you know that A-Check is here to help by providing solutions to meet your immediate needs. Testing and surveillance services through A-Check’s Medical Center partner networks can help as your employees return to the office.
READ MORE

Questions? We’re here to help.

Celebrating 50 Years of the FCRA

Perhaps it went a little unnoticed by many, but let’s take just a moment now to acknowledge that the Fair Credit Reporting Act (FCRA)—the nation’s first consumer financial privacy statute—recently celebrated its 50th anniversary. The FCRA was designed to regulate the practices of consumer reporting agencies (CRAs) that collect and process information into reports used by businesses to make informed financial or employment decisions about consumers. Since 1970, the law has been an immense benefit to consumers, and will continue to ensure covered entities honor their legal obligations. Likewise, it will also require ongoing review to address the evolving economic landscape.

There have been many additional developments to the FCRA over the years, but three important features are as applicable today as they were decades ago during its introduction:

  • The law was constructed to regulate the efficiency of the nation’s consumer credit reporting organizations, drastically reducing the amount of time it took credit applications to be reviewed and processed.
  • The FCRA included legislation specifically designed to improve accuracy and integrity of information presented in consumer reports.
  • And third, it set important—and evolving—provisions to minimize risk of misuse by specifically limiting private consumer information access to only those with a legitimate, permissible purpose to access it.
    READ MORE

A Friendly Reminder about FCRA Requirements

As you’re well aware, when an employer uses a third party (like A-Check) to conduct background checks, there are FCRA compliance requirements that must be followed. Because we’re committed to compliant business practice, we keep a close eye on our own efforts while processing your requests—and are equally committed to our clients’ compliance throughout their employment programs. For your convenience, here’s a very quick checklist of key requirements to keep handy:

  • Ensure there is a permissible purpose for performing a background check on an applicant/employee, based on their role and responsibilities.
  • Provide clear written notice in a stand-alone document to the applicant/employee that a background check will be conducted, and the resulting information will be used to make an employment decision.
  • Obtain the applicant/employee’s written consent to perform a background check and/or investigative report.
  • If the background check information results in an adverse action decision, a notice of pre-adverse action, along with a copy of the background check results and a copy of the Summary of Your Rights Under the Fair Credit Reporting Act, must be presented to the individual.
  • Allow the individual at least five business days to dispute the information in the background check.
  • Upon a final decision, and if adverse action is taken, provide the individual with a final notice of adverse action.

We’re focused on helping you remain compliant, and we always welcome your questions.

Compliance Clips for December 2020

CONSUMER REPORTING

The California Privacy Rights Act
The California Privacy Rights Act (CPRA), a ballot initiative approved by California voters, amends the California Consumer Privacy Act (CCPA) to create additional consumer rights and create a new category of consumer personal information. Never before has a state gone so far to protect consumer data privacy. Before the CPRA takes effect on Jan. 1, 2023, we expect to see another lengthy process of proposing, commenting on, and finalizing CPRA regulations, which the CPRA requires to be promulgated by July 1, 2022. Here’s a closer look.
READ MORE

I-9 AND E-VERIFY

Further Extension: Form I-9 Requirements in response to COVID-19
The in-person requirement for the Form I-9 is temporarily suspended if your company is closed or taking other precautions due to COVID-19. The general rule is that an employer must undertake a physical inspection of the document(s) presented by the employee for section 2 purposes.

UPDATE: Because of ongoing COVID-19 precautions, remote I-9 document review has been extended; the expiration date for these accommodations is now December 31, 2020.

The government has suspended the in-person and physical inspection of the document(s) presented by the employee when completing the Form I-9. During this time, an employer can view the document(s) presented by the employee via Zoom or Skype, for example.
READ MORE

Recent E-Verify Requirement Update
The United States Citizenship and Immigration Services (USCIS) announced a new timing requirement for employers that receive a Tentative Nonconfirmation (TNC) during the E-Verify case creation process. E-Verify now requires enrolled employers to take action on Tentative Nonconfirmations (TNC) for their employees within 10 federal government working days or risk potential compliance actions, up to and including termination of their E-Verify account.
READ MORE

SUBSTANCE ABUSE TESTING

New York
In news we’re watching: New York Gov. Andrew Cuomo has said legalizing marijuana could represent a key opportunity for the state to recover economically from the coronavirus pandemic. Cannabis has been decriminalized in New York since 2019, but recreational marijuana remains illegal in the state. The hope is to have something introduced to address this in early 2021.
READ MORE

Ballot Measures Passed in November
Cannabis legalization was on many state ballots in November, and of the states that voted on cannabis, all approved legal recreational marijuana for adults age 21 and older. New Jersey and Montana approved recreational cannabis, Mississippi approved medical use, while South Dakota approved both recreational and medical use at one time.
READ MORE

Oregon
In yet more recent ballot news, Oregon has become the first state to decriminalize personal possession of small amount of illegal hard drugs, including cocaine, heroin, oxycodone, and methamphetamine. The ballot measure reclassified possession of small amounts of a list of hard drugs as a Class E civil violation, similar to a traffic offense.
READ MORE

AS A REMINDER: At A-Check, we’re happy to help implement a drug screening program that meets your evolving needs—or make adjustments to the program you’re already running with us. Just give us a call at 877-345-2021 and ask to speak with someone on your Client Relations team.

BAN THE BOX

Montgomery County, Maryland
The Montgomery County, Maryland Council approved amendments to its 2014 Ban the Box legislation. Original legislation prohibited employers with 15 or more full-time employees in Montgomery County from conducting a criminal background check of a job applicant, or otherwise inquiring about the criminal or arrest history of an applicant, prior to the completion of a first interview. Bill 35-20 expands previous legislation by prohibiting background checks until after extending a conditional job offer, and redefining “employer” to include any employer with one or more full-time employees in Montgomery County.
READ MORE

COVID-19

Return-to-Office COVID-19 Testing Services for Your Workforce
Depending on your company’s policy, requiring employees to test negative for COVID-19 prior to an office return may be a viable complement to office cleaning and sanitation practices you may already have in place. We want to quickly let you know that A-Check is here to help by providing solutions to meet your immediate needs. Testing and surveillance services through A-Check’s partner network of Concentra Medical Centers can help as your employees return to the office.
READ MORE

Questions? We’re here to help!