U.S. Legislation That May Impact Background Screening in 2023: Part Two – Cannabis Culture
Laws are evolving towards stringent anti-discrimination measures for medical users of cannabis, or comprehensive recreational legalization, as marijuana use gains acceptance. Here's a look at legislation that may impact employment in your state.
This article was originally published in Forbes on April 12, 2023.
In 2023, state lawmakers continue to promote legislation focused on advancing social issues affecting candidates. In part one of this series, we reviewed the composition of the legislative landscape and its impact on federal versus state legislation. We also considered the dominance of clean slate legislation aimed at eliminating the stigma associated with criminal records.
In Part Two, we look at the landscape of pro-marijuana legislation in the U.S. and its impact on employers. Laws are evolving towards stringent anti-discrimination measures for medical users of cannabis, or comprehensive legalization of adult-use, as marijuana use gains acceptance.
A Pew Research Center survey conducted in October 2022 found that most Americans support the legalization of marijuana for medical and recreational use. Thirty percent of those surveyed believe cannabis should be legal for medical use only, while only 10% say marijuana use should remain illegal. Comparatively, a research brief published by the Centers for Disease Control and Prevention (CDC) found that 57% of American adults would support “a policy prohibiting the sale of all tobacco products.” The CDC’s findings reflect a growing public consensus that marijuana use is safer and more generally accepted than tobacco.
Despite widespread support for marijuana, its legalization remains a partisan issue. Republicans are more cautious than Democrats about legalizing cannabis for recreational use, with 45% of Republicans supporting the legalization of marijuana for medical and recreational use. Thirty-nine percent believe cannabis should be legal for medical use only. By comparison, 73% of Democrats say marijuana should be legal for all adult use, while 21% say it should be legal for medical use only.
However, attitudes are beginning to shift in conservative strongholds. For example, in Missouri, where medical marijuana has been legal since 2018, in the 2022 midyear election, voters adopted legalizing recreational marijuana and expanded protections for medical users. Notably, employers are prohibited from adversely affecting the employment of lawful users of medical marijuana, including those that test positive for marijuana metabolites. Federal contractors and those in safety-sensitive positions are exempt from the scope of the law. Workplace impairment and possession of marijuana are also prohibited.
In Ohio, after attempts to have voters consider the fate of recreational marijuana in 2022 were met by legal challenges, House Bill 628 has been introduced, which seeks to legalize and regulate adult-use cannabis. Under the terms of a settlement, lawmakers have until May 3, 2023, four months after the legislation was introduced, to pass the measure. If passed, adults aged 21 and older could possess and cultivate marijuana. If the measure does not pass, voters in Ohio are expected to consider the legalization of recreational marijuana on the November 2023 ballot.
In Oklahoma, voters stayed true to their conservative roots and rejected a proposal to legalize adult-use cannabis. Despite approving medical cannabis in 2018 and a formidable campaign in favor of legalization, the measure failed, with more than 61.5% of Oklahoman voters casting “No” votes. During the 2022 midterm elections, voters in three other red states—Arkansas, North Dakota, and South Dakota—also chose not to advance recreational legalization.
Georgia, Kansas, North Carolina, and South Carolina lawmakers are considering medical marijuana legislation. None of the bills would require an employer to accommodate a qualifying patient’s medical marijuana use reasonably. Employers would be permitted to adversely affect the employment of an individual who tests positive for THC.
Possession and use of marijuana have been legal in Oregon since July 1, 2015. However, an introduced bill would prohibit public healthcare employers from denying employment to prospective employees or taking adverse employment action against existing employees solely based on a positive drug test for cannabinoid metabolites.
Lawmakers in Delaware, Hawaii, and Indiana are considering adult-use measures that offer no employment protections to recreational users of marijuana. Bills filed in Louisiana and Maryland are silent on the issue of employer accommodation. While legislators in Iowa and Minnesota would prohibit adversely affecting a lawful user of marijuana.
In Tennessee, lawmakers are considering both medical and adult use measures. While the proposed medical bill would require an employer to reasonably accommodate the lawful use of marijuana to treat a specific condition, the adult use bill offers no worker protections. Legislators in Texas are also debating medical and recreational bills. Neither bill addresses anti-discrimination issues or workplace impact.
In Florida, an adult use bill has been introduced, as has a bill that permits medical users to renew their licenses via telehealth. New Hampshire’s legislators have filed an adult use bill and a bill expanding medical protections prohibiting discrimination for lawful users.
Expanded protections for cannabis users in Illinois would prohibit employers from adversely impacting the employment of an individual who lawfully uses cannabis outside the workplace and while off-duty. Employers would also be prohibited from acting on a positive drug test for THC absent impairment. Exceptions exist for workers in safety-sensitive positions, individuals impaired while at work, and drug test results where concentrations of THC meet the legal requirements for a DUI offense.
In Washington, where marijuana was legalized in 2012, employers would be prohibited from discriminating against marijuana users or a drug test reporting nonpsychoactive cannabis metabolites in a sample. This bill is similar to a law passed in California, which will take effect in 2024.
Finally, Washington, D.C., recently passed a law that would provide broad employment protections for all marijuana users. Employers cannot adversely affect the employment of an individual based on their use of marijuana unless they are impaired at work.
As pro-cannabis culture continues to sweep the nation, employers are encouraged to keep abreast of emerging legislation in consultation with their legal counsel and drug testing vendors.
Part three of our series covers pay equity and pay transparency laws, which are taking hold across the country.
Keep up to date with the latest U.S. Compliance updates by registering for HireRight’s next quarterly U.S. Compliance webinar, which takes place on Wednesday, April 26, 2023, at 11 a.m. PST/ 2 p.m. EST. This webinar will also be available to watch on-demand after this date.
Release Date: April 18, 2023
Alonzo Martinez is Associate General Counsel at HireRight. Mr. Martinez is responsible for monitoring and advising on key legislative and regulatory developments globally affecting HireRight’s service delivery. His work is focused on ensuring HireRight’s performance as a consumer reporting agency and data processor complies with relevant legal, regulatory, and data furnisher requirements. Mr. Martinez obtained his Juris Doctorate from the University of Colorado, and is licensed by the Supreme Court of the State of Colorado. He is a member of the Colorado Bar Association Employment Law Division, the Association of Corporate Counsel, and the Professional Background Screening Association.