Federal Marijuana Legalization and How It Could Affect Contractor Background Screening

Background Screening | December 27, 2021

One of the most pressing questions for organizations that use contractor networks to service, install and deliver their products is whether they should test their contractor backgrounds for drugs, specifically marijuana. 

As states continue to legalize marijuana for both recreational and medical purposes, the patchwork of requirements, obligations, and permissible actions in each jurisdiction continues to grow. Layer on top of that the recent talk of legalization at the federal level and many wonder what this federal decision may mean for organizations?

Marijuana is Currently A Prohibited Substance

At present, marijuana is considered a banned Schedule I substance under the Controlled Substance Act, which means that even when states have been legalizing the use of marijuana, it remains a prohibited substance at the federal level. For this reason, organizations may continue to enforce drug-free workplaces, restrict individuals from using or being under the influence of marijuana in the workplace, and take measures to ensure a safe work environment for their staff, suppliers, customers and partners. 

Could Marijuana be Legalized Federally?

Although the likelihood of federal legalization is still a bit of a pipe dream, pun intended, some hope it will simplify matters for organizations, but the reality is that it may also serve to further complicate matters. Without knowing if the federal legalization would include a duty for organizations to accommodate the use of marijuana, or include other employee-friendly measures, the federal law may be the baseline for organizations, with states able to preempt the federal requirements and impose their own additional, and likely more strict measures. It does not usually happen that the federal requirement would be the more restrictive measure but that could happen as well. 

This would result in a continued mismatch of requirements across states without any clear guidance or single requirement for organizations to follow. Additionally, those organizations that operate across state lines will be in a situation where they must support a disparate process across their contractor networks based on what is permissible in each state. 

In those areas where the individual is doing what is considered safety-sensitive work, there may be exclusions from certain obligations related to these marijuana legalization laws. This occurs when the type of work is considered to have an impact on the health and safety of others. Again, this is an area where states vary greatly in their interpretation and federal law would be well advised to set a consistent definition that could be applied.

How Legalization Could Change Criminal Records and Contractor Background Screening

In concert with many of these legalization efforts is the impact on criminal records, specifically when a behavior related to marijuana is decriminalized. For reference, legalization makes an act completely acceptable in the eyes of the law and, therefore, not subject to any penalties. Decriminalization, on the other hand, means that an act is no longer regarded as a criminal act but it may still be subject to minor penalties or fines. 

Some states, like California, have looked at previously convicted offenses related to marijuana and basically expunged them now that the use of marijuana has been legalized. If this were to happen at the federal level as it has at the state level, organizations would no longer get a complete picture of someone’s potential criminal history as these types of offenses would no longer be reported. The challenge with this, of course, is that these crimes may be precursors to more serious issues and/or may demonstrate a pattern of behavior or disregard for the law that an organization may consider relevant.

So while the eventual hope is that federal legalization would impose one standard and set of guidelines, the reality is that states will continue to add their own twists which will serve to confuse and frustrate organizations who use contractors and require contractor background screening.  Clearly, this is something that requires continued monitoring and we’d be happy to be wrong about this but to believe that states and the federal regulators would agree on something seems to go up in smoke whenever they get close. 

Contents are provided for information purposes only and should not be construed as legal advice. Users are reminded to seek legal counsel with respect to their obligations and use of PlusOne Solutions services.

About PlusOne Solutions

PlusOne Solutions has been an industry leader in the risk management field by specializing in compliance programs that meet the complex challenges of geographically dispersed contractors, vendors, and employee networks. PlusOne Solutions protects companies from possible financial, legal, and reputational risks associated with contractor and vendor relationships while creating safer work environments. To learn more, visit https://www.PlusOneSolutions.net.