Following Colorado and Washington, on October 1st 2015 Oregon became the third State to legalize the recreational use of marijuana. The legalization of marijuana will mean many employers with have to revise their drug testing policies and overall employment screening program.
Legalizing marijuana forces companies to re-examine their drug screening policies and hiring practices. Although most companies that already had a drug testing policy in place will most likely keep screening current and prospective employees for drug use. However, the acceptable level of drug use that may be allowed could change and tests could look for either recent or substantial drug us. This will certainly cause headaches for hiring managers, human resource departments and companies at large operating in a State were marijuana use is legal further complicating the employment screening efforts and hiring process at large.
The trend in the USA over the past few years has been focused on reducing and hopefully eliminating discrimination during the hiring process and during employment. With ban-the-box legislation sweeping through the country many employers can no longer ask job applicants on their applications if they have a criminal record. The ambition here is to give job applicants with past criminal records a fair chance at gainful employment. Additionally the EEOC is taking companies to court for proposed discrimination during the hiring process and also looking at disparate impact which on the surface may not be discriminatory but nonetheless discriminate against minorities and/or protected classes.
For those wondering whether an employer can refuse to hire a job applicant based on a positive drug test for this legally prescribed drug. The answer so far is yes. In California the California Supreme Court has ruled that the State’s medical marijuana law applied only to criminal prosecution, not to the workplace. This seems to be the trend when marijuana use and possession is legal. This further complicates employment screening policies and is causing companies to revisit their drug testing and employment screening policies. However it is still important for companies to use a third party background screening company to provide the public record reports including criminal background checks as part of the employment screening process. It appears now that the rules of employment will be up to the employer as long as the employer carefully follows all relevant employment laws and is consistent in its hiring practices.
To learn more about the spread of the legalization of marijuana throughout the USA and what this means for employers within those States please read recent CriminalBackgroundRecords.com press release.