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Biden’s Marijuana Pardon: What Does It Mean for Employers?  

President Joe Biden’s executive order earlier this month that pardons Americans convicted of “simple possession” of marijuana gives thousands a better shot at landing jobs.

cannabis 1382955 1920In discussing his October 6 executive order, Biden noted that “criminal records for marijuana possession have…imposed needless barriers to employment, housing, and educational opportunities.”

“There are thousands of people who have prior Federal convictions for marijuana possession, who may be denied employment, housing, or educational opportunities as a result,” Biden said. “My action will help relieve the collateral consequences arising from these convictions.”

Biden also requested that all governors follow his lead and that the Attorney General and Secretary of Health and Human Services review how marijuana is classified under the category “for the most dangerous substances.” The pardons could help more than 6,500 people, but doesn’t directly change federal or state employment law, Bloomberg Law reports.

“It was a very small number of people, but there may be some small, direct impacts,” particularly when it comes to highly regulated work, or perhaps roles with security clearances," says Nancy Delogu, a shareholder with Littler Mendelson P.C. “This will help them get work, obviously.”

For applicants vying for jobs where employers are allowed to ask about their arrest and conviction history, the pardons effectively mean there won’t be anything to disclose.

The US Equal Employment Opportunity Commission (EEOC) has told employers that mandating a background check under federal law isn’t illegal, as long as they carry out the process in a non-discriminatory way. This could mean, for example, that an employer can’t just conduct a background check for Asian applicants. But, the EEOC warns that employers should tread carefully. “For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee,” according to the agency.

“In my experience, many, if not most, employers do not consider convictions for simple possession of marijuana and more jurisdictions are actually making it unlawful for an employer to do so, including in California, Virginia, and New Jersey,” Jennifer Mora, senior counsel at Seyfarth Shaw, tells Bloomberg Law.

For U.S. employers, the order could mean good news for many firms that still struggle to attract talent and fill job vacancies, Reuters reports. For other employers, the order raises some questions on how to move forward with existing drug screening tests and policies and the potential implications of dropping such tests. While the majority of Fortune 1000 companies currently have a screening process in effect, many are removing cannabis tests, Barry Sample, a senior science consultant who compiles Quest Diagnostics’ data, tells Reuters.

Quest Diagnostics, which runs drug tests for companies, notes that positivity rates for marijuana tests have risen over the past decade. This has happened as legalization has become more and more prevalent in states. There are an estimated 30 million to 35 million employment-related drug tests done in the U.S. yearly, according to Quest. Thirty seven states have legalized cannabis use for medical reasons and 19 have made it legal for recreational use.

It’s too early to know yet whether companies that end drug testing will see their insurance rates go up, according to insurance experts. “Nobody is going to come out and say, 'We're increasing premiums because you have more stoned workers on the job,'" Mark Pew, a consultant who specializes in workers' compensation insurance in Georgia, tells Reuters. But if evidence over time shows that companies with lenient or no drug screening policies record higher accident rates than companies that maintain tougher testing standards, that could impact rates, Pew said.

Julie Schweber, a senior knowledge adviser at the Society for Human Resource Management, said that the tight job market means “many employers are moving now to drop marijuana from the drug test panel for pre-employment tests,” BenefitsPRO reports.

“The impact for employers is that when you are doing a criminal background check, if the person has a conviction under federal law for marijuana possession, I think that the employer cannot and should not consider that anymore,” Kathryn Russo, employment attorney with Jackson Lewis in Melville, NY., tells BenefitsPRO. “To me, that’s one of the big outcomes of this.”

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