How Biden's Executive Action on Marijuana Might Impact Employment

For years, activists, lawmakers, and others have decried that cannabis remains federally classified as a "Schedule I" drug—the same danger level as a drug such as heroin. Marijuana's status as a Schedule I substance has kept it federally illegal and continues to constrain the industry in states with medical and recreational cannabis laws. 

Meanwhile, the stigma of being a "drug offender" for past marijuana-related convictions remains, as does the potential difficulty in seeking employment due to drug testing policies. Early in October 2022, President Joe Biden signed an executive order that signals the potential for a significant shift in the coming years. The order involved several key points:

  • An automatic pardon of all federal convictions for marijuana possession, an action estimated to affect several thousand individuals.
  • A call on state governors to implement their own automatic expungement programs for marijuana possession convictions, with federal financial support.
  • Beginning a review of marijuana's federal scheduling status.

Although it could still be years before the government reschedules cannabis, the move to grant pardons for marijuana possession—and the call on states to do so—is the bigger news for businesses. What impact could this have?

Before this executive action, some states had already begun implementing automatic expungement for cannabis-related crimes. Other states, such as New York, have barred employment drug testing procedures from considering positive results for cannabis. With the President signaling that it is time for attitudes to change, it is possible that such laws could become the norm in many more jurisdictions. Businesses should note and prepare for potential changes to their pre-employment drug screening policies.

However, these actions may influence companies to take early action before state or local governments step into the picture. Adjusting drug screening requirements to drop cannabis testing is possible, and many businesses have already made that choice. Since tests cannot indicate the recency of use or sobriety in the moment, some have seen them as a tool that can reinforce bias and prejudice.

In one ten-year period, 88% of more than 8 million marijuana arrests were for simple possession. Between background checks and the pre-employment drug test, this low barrier could mean that employers frequently miss out on highly qualified and capable candidates. With attitudes changing nationwide and bipartisan support for various legalization tactics, this latest executive order could dramatically push more businesses to alter their thoughts about screening.

At a time when unemployment remains low, and companies must compete for candidates to fill open positions, using a drug test for employment that excludes cannabis users could mean overlooking valuable resources. As the study to reschedule marijuana commences and states begin considering the prospect of automatic expungement, employers shouldn't simply stick with the status quo. Instead, monitor these changes, evaluate the effectiveness of your policies, and adapt to the changing landscape.

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Michael Klazema

About Michael Klazema The author

Michael Klazema is the lead author and editor for Dallas-based with a focus on human resource and employment screening developments

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