Federal and Future State Pardons for Cannabis Complicate Employment Screening

For years now, an ongoing cultural and political shift concerning cannabis has been underway. As the heyday of the War on Drugs fades into the rearview mirror of history, the social wreckage left behind continues to act as a barrier to social mobility while keeping recidivism rates high. Even relatively minor, low-level drug convictions, such as marijuana possession, can derail someone’s life for years or even decades. Obtaining housing and getting a job are drastically more difficult when you must report a criminal conviction.

The spread of medicinal and recreational cannabis, along with a growing “Fair Chance” movement that recognizes the adverse social effects of such barriers, has led to a reconsideration of prior convictions. In 2022, President Joe Biden announced an unprecedented executive action that would immediately provide pardons for all low-level marijuana convictions rendered in federal court. Although this totalled only about 6,500 individuals, the executive order came with a directive exhorting state governors to consider making similar moves.

Some have already taken up that call. In Oregon, more than 45,000 people received a blanket pardon for simple possession beginning in November of 2022. Other states look set to follow suit in 2023 and beyond. For businesses, what impact will this have on efforts such as employment drug testing and background checks?

There are currently few types of drug tests that exclude cannabis from the panel, although growing demand for such panels may lead to their development in the future. A more careful review of drug testing results may be necessary for areas where cannabis pardons or expungements are common. Employers should review any local laws relating to drug testing, specifically for cannabis, and determine whether they should consider positive marijuana tests as relevant.

However, the pre-employment drug test is only one part of the picture. Even though pardons and especially expungements technically mean that it’s as though the crime never occurred, these records may remain visible in some sources—potentially for years. There is often poor technical communication between states, courts, record repositories, and consumer reporting agencies. As a result, a background check can return records that have since been expunged.

As with drug screening, applicants with such records can legally deny that they’ve ever been convicted of a crime—which could lead to confusion in the hiring process. Reconsidering the impact and especially the relevance of low-level possession convictions for cannabis may be the next step. Ultimately, every business owner must make decisions based on what is best for the safety and productivity of the company.

However, as cannabis becomes more and more accepted for personal use, employers must be vigilant nonetheless. Even if you decide that such convictions are irrelevant for consideration for the job at hand, there are some professions where a drug test for employment remains required—and cannabis remains an automatic disqualifier, such as in trucking. 

Companies must stay on top of changing legislation and executive actions to ensure a fully compliant process that is both fair to job-seekers and confidence-inspiring for employers. Don’t let simple cannabis charges trip up your hiring process.