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Clearing the Fog Surrounding Cannabis Law

The general perception of cannabis has undergone quite an evolution in recent years. Here are some general hiring insights to consider.

The general perception of cannabis has undergone quite an evolution in recent years. This evolution has inspired several changes to state workplace practices and regulations. They are introducing greater complexity to the hiring equation. Here are some insights that can help clarify an often complicated and controversial issue.

Important Cannabis Basics to Understand

While it may be a matter of semantics, the word “cannabis” actually refers to a genus of plants under which a disputed number of species fall. Both marijuana and hemp fall under the cannabis umbrella the latter being federally legalized in 2018 while the former remains illegal at the federal level. 

When all is done, the legalities of cannabis revolve near the specific mixes separate. Tetrahydrocannabinol (THC) is a psychoactive compound seen(in proportionally large amounts) in marijuana. Cannabidiol (CBD), on the other hand, is non-psychoactive and growing in popularity worldwide as more learn about it. While THC is illegal, CBD is perfectly legal, though both derive from cannabis plants. Cannabis plants produce between 80 and 100 cannabinoids, which aren’t psychoactive. 

In summation, cannabis is a genus of plants that isn’t altogether illegal. However, the word is often used synonymously with “marijuana,” which is regarded as the genus’s psychoactive constituents.


In 2020, the highest number of cannabis consumers in the United States were located in California, amounting to approximately 6.7 million.


Addressing the Gray Area

Now, when it comes to marijuana and its current legality status, there is some understandable confusion. The majority of this confusion stems from the fact that the nation and its states have separate controlled substance laws.

The Controlled Substances Act (CSA), initially introduced in 1971, is a federal statute that regulates U.S. drug policy. This statute applies to every state. Under the CSA, marijuana is classified as a Schedule I controlled substance, subject to the most stringent federal substance controls. Given this reality, some may ask how the decriminalization of the substance continues to spread from state to state.

Well, the question has a partial yet not fully-justified answer. Let’s clarify. Another statute known as the Uniform Controlled Substance Act was drafted by the department of justice several decades ago. This statute aims to promote uniformity between state and federal drug policy. While most states have adopted and continue to uphold a version of the Uniform Controlled Substance Act, there is no complete overlap between substances under state and federal control. That said, the line is reasonably well defined at the national level. Therefore, what seems like a loophole between the state and federal definition of “legal” is more of how illegality tolerates at the state level.

Separating the Truths from the Myths

When it comes to any discrepancy between the state and federal outlooks on marijuana legalization, here are some points that can serve as immovable truths given the U.S. constitution:

  • Federal law always takes precedence over state law when there is a discrepancy.
  • States do not have the power to legalize marijuana due to the Constitution’s Supremacy Clause.
  • Unauthorized uses of marijuana are recognized as federal crimes anywhere in the U.S. This includes those states that have adjusted their laws to allow recreational or medicinal marijuana use.
  • Decriminalization and Legalization are two entirely separate considerations. When something decriminalizes, it remains illegal, but the penalties ease. Legalization is the transition from illegal to legal.

Given these facts, we learn that marijuana can only legalize if its classification is reconsidered at the federal level. Only Congress and the executive branch have such authority. However, even if such a thing did occur, states would retain the ability to uphold their marijuana laws. This means that upon federal Legalization, the legality of marijuana could still vary from state to state (for more details, consult this resource).

What Does Cannabis Mean for Employment?

Much like substance regulation, labor laws source federally and at the state level. Employers must comply with both federal and state labor laws. Employers may find that many of these laws are confronted when coordinating and carrying out their pre-employment screening processes. While a marijuana-related conviction may carry specific implications at the federal level, individual states may view matters differently.

When conducting a background check on a prospective hire, state and federal labor laws dictate what information can use in a hiring decision. Some states don’t allow employers to make hiring decisions based on marijuana-related convictions. The state regulations surrounding drug testing practices also vary from state to state.

Adult-use cannabis (authorized by the New York Marijuana Regulation and Taxation Act) is addressed in the workplace. For example, The New York Department of Labor recently provided guidelines for employers. Here are a few of the primary procedures outlined in a New York State Department of Labor report:

  • An employer can only take action against an employee (or candidate) if they are impaired by cannabis while working.
  • Employers cannot prohibit the use of cannabis outside the workplace.
  • Employers in New York state cannot test for cannabis unless there is document reasonable suspicion of impairment. 


The overarching message to communicate here is this:

Employers are required to understand the state and federal employment legalities that interact with their sphere of responsibility.

While cannabis laws remain rigid at the federal level and somewhat fluid at the state level, employers should focus on how those laws have affected hiring policies and regulations in their jurisdiction. In the case of marijuana, its status as a Schedule I substance, even when considering the Supremacy Clause, doesn’t offset an employers’ responsibility to abide by specific state regulations.

So, what are all these regulations, which ones apply to who, and how can one stay on top of it all?

Thankfully, the pre-employment screening industry is working to educate, inform, and bring clarity to these often misunderstood issues with the help of organizations such as the Professional Background Screeners Association (PBSA). The overall goal is to make hiring simpler and safer for organizations large and small across the nation.

For more information on legislative updates, news, and recent discussions, visit the PBSA website.

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