Navigating Background Screening Around Marijuana in 2023 & the Legal Implications in the Workplace

Navigating Background Screening Around Marijuana in 2023 & the Legal Implications in the Workplace

Marijuana in the workplace has become a hot-button issue in recent years, with many states legalizing the drug for medicinal and recreational use. However, this has created several legal implications for employers, particularly when it comes to drug testing and background screening. In this blog post, we’ll take a closer look at some of the key issues and regulations surrounding marijuana use in the workforce.

Understanding the Legal Landscape:

First and foremost, it’s important to note that marijuana is still illegal at the federal level, even though many states have legalized it in some form. Employers who operate in multiple states or have federal contracts must comply with deferral laws, which prohibit the use and possession of marijuana. However, many states have enacted their own laws and regulations that differ from federal law, creating a complex legal landscape for employers to navigate.

One important area of concern for employers is drug testing. While drug testing is common practice in many industries, testing positive for marijuana use can be problematic in states where it is legal. In some states such as California, employers are prohibited from discriminating against employees or applicants who use marijuana outside of work. This means that if an employee tests positive for marijuana but is not impaired while on the job, the employer may not be able to take adverse action against them.

There are exceptions to this rule. For example, employers in safety-sensitive industries such as transportation or construction may be able to take adverse action against employees who test positive for marijuana, even if it is legal in their state. Additionally, employers may be able to take action against employees who are impaired while on the job, regardless of whether they used marijuana outside of work.


How to Handle Background Screenings:

Another important consideration for employers is background screenings. The Fair Credit Reporting Act (FCRA) regulates the use of background checks in employment decisions, including those related to drug testing. Under the FCRA, employers must obtain written consent from applicants before conducting a background check and must provide them with a copy of the report if adverse action is taken based on its finding.

Employers must also be careful not to violate the FCRA’s rules on “adverse action”. This term refers to any negative employment decision based on the results of a background check, including denying an applicant a job or firing an employee. If an employer takes adverse action based on an applicant’s marijuana use, they must be able to demonstrate a legitimate business reason for doing so and must provide the individual with a copy of the report and an opportunity to dispute any inaccuracies.

State laws and policies can also impact background screening practices related to marijuana use. For example, some states have “ban the box” laws that prohibit employers from asking about an applicant’s criminal history until after a job offer has been made. Others have enacted “fair chance” policies that require employers to consider an applicant’s qualifications and rehabilitation efforts before taking adverse action based on their criminal history.



Navigating the legal implications of marijuana in the workplace can be a complex and challenging task for employers. It’s important to stay up-to-date on federal and state laws, and regulations related to drug testing around background screening, and to work with legal counsel to ensure that employment decisions comply with applicable laws. By doing so, employers can help to create a safe and productive workplace while also respecting the rights of their employees and applicants. Set up a free consultation today to learn more, or to partner with us to develop your comprehensive process:

Read up on some trends on the SHRM site HERE.