The Impact of President Biden’s Pardons on Employers

From 2019 through 2020, we heard all about former candidate Biden’s campaign promise to decriminalize and expunge cannabis convictions. Since then, the administration has, in large part, remained silent on marijuana reform … until now. In an effort to begin overhauling the country’s federal marijuana laws, President Biden recently signed an executive order pardoning citizens and lawful permanent residents convicted of simple marijuana possession (defined as a small amount of a substance on their person or available for their own use) under federal law and District of Columbia statute. The pardon also goes a step further by blocking future federal prosecutions for simple marijuana possession.

“As I often said during my campaign for President, no one should be in jail just for using or possessing marijuana,” said President Biden. “Today, I am announcing three steps that I am taking to end this failed approach.”

President Biden’s first step consisted of the pardons under federal and District of Columbia law. According to a White House official’s statement to CNBC, “More than 6,500 individuals with prior convictions for simple marijuana possession were impacted by the pardons, and thousands more through pardons under D.C. law.”

While the President’s authority is limited to those two jurisdictions, he used the opportunity to lay the groundwork for his second step—calling for governors to do the same at the state level, where notably, a majority of simple possession infractions exists. In fact, between 2001 and 2010, there were 8.2 million marijuana arrests, 88% of which were for simple possession. 

This encouragement at the state level was unnecessary for certain states though. Both California Governor Newsom and Colorado Governor Polis had previously issued pardons for low-level marijuana convictions, while Illinois Governor Pritzker expunged nearly 500,000 marijuana arrest records and pardoned thousands of others in 2020.

Additionally, approximately 40 states have legalized marijuana for medical purposes and approximately 20 for recreational purposes, to date. And we are likely to continue to see these numbers rise, sooner rather than later. During November’s mid-term elections, Arkansas, Maryland, Missouri, North Dakota, and South Dakota voters will all decide if the recreational use of marijuana will be legalized in their states.

Pardons and state encouragement aside, what many believe is the most significant part of President Biden’s announcement is his third step—his promise to initiate an administrative review and potential change of federal marijuana scheduling—the classification system that criminalizes marijuana at the federal level.

Regardless of the numerous state law changes over the past several years, marijuana remains a Schedule 1 substance under the Controlled Substances Act (the classification intended for the most dangerous substances without any currently accepted medical usage). But is that about to change?

In April, the House of Representatives voted to decriminalize marijuana at the federal level. However, the Senate has not yet considered the legislation. Coupled with the President’s proposed review of marijuana’s federal status, many are considering what type of shift we may begin to experience ahead of the 2024 election.

Marijuana Already on the Rise

Employers are already struggling to keep employees and customers safe, while complying with various marijuana laws that are constantly changing—all in light of drastically rising positivity rates. In fact, the marijuana positivity rate in the U.S. workforce in 2021 was the highest ever reported, and over the past five years, marijuana positivity rates have increased 50%.

The primary factor in the marijuana positivity rate increase is based on the fact that, as we’ve discussed, most states have now legalized it for either medical or recreational use. Additionally, more people are working from home post-pandemic, seemingly no longer concerned with drug tests. According to SHRM and a survey conducted by the National Safety Council, “More than one-quarter [of respondents] said an added benefit of working from home is the opportunity to use alcohol and other drugs during the workday.”

Many studies have also shown an increase in mental health issues resulting from the circumstances surrounding the pandemic and its aftermath. And unfortunately, increased anxiety, depression, and loneliness have altered drug use behaviors. Simply, more people are using drugs to try to self-medicate.

Where Legislation Meets the Workplace

While all of these reasons for the increase in marijuana positivity are logical, they do nothing to help employers struggling with how to keep their workplaces drug-free and safe. According to the National Safety Council, which still recommends a zero tolerance policy for employees in safety sensitive positions, “When workers use impairing substances, it can create incidents that compromise the safety of other workers and, in some cases, the general public. Employers should have the right and ability to maintain a substance-free workplace and the use of drug testing, including oral fluid in addition to urine. NSC supports policies and procedures that ensure safe and healthy workplaces.”

The recent pardons, expungements, and legislative tone only add to the serious marijuana issues that have been clouding employers’ decision making for years. Now, on top of all of their previous considerations, employers may not even know if the person they are about to hire had committed a marijuana-related possession crime in the past. Similar to other legislation limiting the amount of information an employer can consider in a background check, it leaves the employer wondering exactly who they are hiring.

What Should Employers Do About It?

While President Biden’s executive action does not directly address employment laws, its indirect impact is wide and far-reaching on employers. In conducting a criminal background check, an employer may not be able to see that an applicant had a marijuana possession conviction in the past or, if they can see it, the employer may no longer be able to consider that information when making a hiring decision.

The uncertainty employers face and the importance of staying informed about the status of marijuana laws around the country in balancing compliance with their drugfree workplace policy is troublesome. And this latest development is no exception. Now, not only do these laws impact employers ability to test for marijuana, but also what criminal information they have access to in determining who to hire.

Employers should reconsider their policy on how they treat marijuana convictions at the state level, as well. They also may want to shift their focus to other drugs that remain illegal at all levels of government, especially those which are also showing an increase in positivity rates (methamphetamines and cocaine, for example).

As always, employers must stay diligent in the ever-changing world of marijuana legislation by:

• Staying informed about marijuana laws and regulations, particularly through the mid-term elections and leading up to the 2024 election.
• Revisiting hiring and drug testing policies to determine if marijuana convictions will be considered in the hiring process and/or if any other illegal substances will be added to the panel.
• Revisiting drug free workplace policies in light of new legislation to ensure compliance.
• Thoroughly training employees on these policies and about issues surrounding drug use and impairment.
• Evaluating any applicable Occupational Safety and Health Administration (OSHA) and Department of Transportation (DOT) risks.
• Working with a PBSA-certified background screening company to help ensure compliance.

Not only is marijuana positivity rising, but so is the ambiguity surrounding what is legal and where, as well as the doubt as to an applicant’s past criminal history—all amid an ongoing recruitment and retention crisis crippling much of the country. For employers, they want nothing more than to clear the smoke.

Hire Image strives to be your trusted background screening resource and partner in 2022 and beyond. For more information on Medical or Recreational Marijuana, and whether they affect your state, visit our resource guide at the Hire Image Resource Library. If you have any questions about how to best protect your business, employees, and customers, please reach out at contact@hireimage.com.