New Legislation Regulating Employment Background Screenings in 2022

Federal, State, and local laws surrounding employment background screenings are constantly changing. To stay compliant in 2022, it's essential to keep up with the latest legislation. In this blog post, we will discuss some of the most recent laws passed and what you need to know to comply with them.

Federal News

The Fair Chance to Compete for Jobs Act of 2021 (Fair Chance Act), which went into effect on December 20, 2021, applies to all federal agencies and contractors doing business with the government. Until a conditional employment offer is made, federal contractors can no longer inquire about criminal history during the application process. Exceptions include law enforcement, national security, jobs that have access to classified information, etc.

Decriminalization of Marijuana

On April 1, 2022, the U.S. House passed the Marijuana Opportunity Reinvestment and Expungement Act or the MORE Act. This bill would allow individuals who have been convicted of marijuana misdemeanors to apply for expungements. The House passed similar legislation in December 2020 but did not consider it in the Senate.

If passed, the MORE Act would:

• Eliminate criminal penalties for manufacture, distribution, and possession.
• Provide for regulation and taxation of legal sales.
• Expungement of federal marijuana convictions back to 1971.
• Bar denial of federal public benefits or security clearances based on marijuana offenses.

Current Status: Passed House not Yet Law

DOT-Regulated Drug Testing

The U.S. Department of Transportation (DOT) published in the Federal Register on February 28, 2022, a notice of proposed rulemaking for oral fluid drug testing of transportation employees covered by federal regulations.  

The Department of Transportation announced that the addition of oral fluid drug testing would offer employers a choice to help combat employee cheating on urine drug tests while also offering a more cost-effective, less intrusive method of achieving program objectives. The proposed rules are also intended to align with the Mandatory Guidelines for Federal Workplace Drug Testing Programs Using Oral Fluid established by the U.S. Department of Health and Human Services in 2020.

Key Takeaways

• Would permit Oral Fluid testing as an alternative drug testing method for DOT-regulated workplace testing.
• Harmonize, as needed, with the new Mandatory Guidelines for Federal Workplace Drug Testing Programs established by the U.S. Department of Health and Human Services.
• Allow direct observation of urine collections by any licensed or certified medical professional legally authorized to take part in a medical examination in the jurisdiction where the collection occurs.
• Allow MRO staff to contact pharmacies to verify an employee's prescription.
• 'Un-cancel' a test that was 'canceled' by the MRO if circumstances dictate 
• Allow the use of options of official identification numbers issued by State or Federal authorities instead of Social Security Numbers.

Most significantly, DOT's proposed rule states that the oral fluid testing window of detection for marijuana is up to 24 hours. In contrast, urine testing's detection window for marijuana is 3 to 67 days.

The U.S. Department of Transportation (DOT) is proposing training criteria for oral fluid collectors, collection site rules, procedures for protecting the security and integrity of oral fluid collections, and processes for collecting oral fluid. The regulations propose initial and confirmatory cut-off concentrations for drugs and collection standards that must be met.

Although oral fluid testing is relatively new, the DOT has several questions, including who should be allowed to obtain oral fluid samples and whether Medical Review Officers should be trained further on evaluating oral fluid tests.

Comments on the notice of proposed rulemaking needed to be submitted by March 30, 2022.

State Court Access

California

In May 2021, the California Court of Appeals ruled in All of Us or None v. Hamrick that a DOB and driver's license number may not be used to identify an individual when searching a court's electronic criminal index as these data cannot be used to authenticate the identification. 

Key Take-Aways

• Court Rule 2.507(c) prohibits displaying or publishing date of birth or driver's license information in a court calendar, register of action, or index.
• Historically – DOBs and DL's are used as part of the search as a filter.
• All of Us or None of Us v Hamrick (statutory interpretation)
• C.A. Court of Appeals held: that public searchers may not search for and locate records by inputting an individual's available date of birth and driver's license number.
• C.A. Supreme Court declined to review; clerks continued to redact from online and public access terminals. 
• Delays, Clerk assistance to verify full dates of birth slowed
• Criminal record checks in California will continue to be complicated.

Update: Senator Steven Bradford of the California State Senate (D-Inglewood), chair of the Senate Consumer Protection Committee, introduced SB 1262. It may solve the problem by requiring publicly accessible electronic criminal defendant indexes to search and filter results based on a defendant's driver's license number, date of birth, or both.

• Referred to Committee in March
• Set for a hearing on April 26

Michigan

A rule that would have redacted dates of birth (DOBs) from court records statewide as of January 1, 2022, has been amended. Upon registration, individuals (such as consumer reporting agency personnel) may access birth dates on criminal records for identity matching purposes with the candidate's consent under the amended regulation, which goes into effect on April 1, 2022.

Researchers at the Michigan court will use this registration site to submit the necessary information, which courts in Michigan will then use. This will determine which users can access identifiers when looking through records.

Who needs to register:

• Researchers and anyone who goes to the Michigan courts to pull records (electronically or in-person).
• New from our researchers in the field: All courts comply with DOB requests. The process is still slow in some counties, and delays should be expected until the process is solidified.
• DOBs have been redacted from many public access terminals, so every possible hit requires clerk assistance to confirm.

MARIJUANA SCREENING

States that have medical marijuana programs: 37+DC

• Idaho, Nebraska, Kansas (no law)
• Wyoming, Iowa, Texas, Wisconsin, Indiana, Kentucky, Tennessee, Mississippi, Georgia, South Carolina, North Carolina (CBD/Low THC program)

States that have recreational marijuana legislation/programs: 18+DC 

• Alaska, Arizona, California, Colorado, Connecticut, DC, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, New Mexico, New York, Oregon, Vermont, Virginia, and Washington

Maine

Constitutional Amendments (H.B. 1 and HB 837) passed on April 1, 2022

• H.B. 1 would legalize recreational marijuana use for individuals aged 21 and over.
• HB 837 would decriminalize recreational use.
•  It does not mention employers or workplaces.
•  Requires ratification by Voters in November 2022 election.

Mississippi

The Mississippi House passed Senate Bill 2095 on January 26, 2022, the "Mississippi Medical Cannabis Act." On February 2, Governor Tate Reeves signed the bill into law. The legislation took effect immediately.

The bill allows individuals who suffer from one of twenty different medical conditions or categories of ailments to apply for a Mississippi medical marijuana card, including cancer, Crohn's disease, post-traumatic stress disorder, any "chronic, terminal, or debilitating" condition resulting in chronic pain, and "any other condition" that the Mississippi Department of Health may add in the future. The law clarifies that smoking medical [marijuana] outside or in a motor vehicle is prohibited.

There are no express employment protections for medical marijuana cardholders in the Mississippi legislation.

It does not require employers to:

• pay or reimburse for costs associated with medical marijuana use
• permit, accommodate or allow the use of medical marijuana by employees
• modify any job or working conditions of employees who are medical marijuana cardholders

Does not prohibit an employer from:

• refusing to hire applicants or taking adverse employment action against employees who are medical marijuana cardholders
• establishing and enforcing drug testing or drug-free workplace policies

Does not:

• provide for an express, legal cause of action for an individual to file a legal claim against an employer; and
• impact the workers' compensation premium discount programs

Montana

Montana HB 701, which went into effect on January 1, 2022, amended the lawful off-duty conduct statute. Marijuana is considered a "lawful product" under the law. Employers may not refuse to hire or discriminate against an individual concerning compensation, promotion, or the terms, conditions, or privileges of employment because the individual legally uses marijuana off the employer's premises during nonworking hours.

Key Take-Aways

Law does not:

• Require employers to permit/accommodate use in the workplace or on the employer's property.
• Prohibit an employer from disciplining for violating a workplace drug policy or working while intoxicated.
• Prevent an employer from declining to hire, discharging, disciplining, or otherwise taking adverse employment based on violation of a workplace drug policy or intoxication while working.
• Prohibit an employer from including a provision prohibiting the use of a debilitating medical condition in a contract.
• Permit a cause of action against an employer under the State's wrongful discharge or freedom from discrimination law.

The law, however, amends the lawful off-duty conduct statute. Marijuana is considered a "lawful product" under the law. Employers may not refuse to hire or discriminate against an individual concerning compensation, promotion, or the terms, conditions, or privileges of employment because the individual legally uses marijuana off the employer's premises during nonworking hours.

Philadelphia, PA

Philadelphia enacted an ordinance banning pre-employment marijuana testing. The ordinance referred to as the Prohibition on Testing for Marijuana as a Condition for Employment (Phila. Code § 9-5500), went into effect on 1/1/2022.

Key takeaways 

An employer, labor organization, or employment agency may not request prospective employees to submit to marijuana drug testing as a condition of their hiring.

Exceptions:

• Police officers, positions require a CDL, parts responsible for supervision or care of children, patients, disabled, vulnerable individuals, roles for which employees could significantly impact the health or safety of other employees or members of the public
• Does not apply to drug testing under federal or State statute, regulation, or order; contract between federal government and employer, when an employer is a party to a valid collective bargaining agreement

New Hampshire

On January 14, 2022, the New Hampshire Supreme Court reversed a trial court decision that dismissed a former employee's complaint. His employer failed to consider whether it could reasonably accommodate his use of marijuana for medical purposes.

Key Takeaways

• Employers may need to consider medical marijuana as a reasonable accommodation
• Supreme Court held: that the New Hampshire disability and accommodation statute does not contain any language categorically excluding the use of medical marijuana as an accommodation. Instead, whether an accommodation for a medical marijuana user is reasonable is "intrinsically a factual determination" that "should be decided on a case-by-case basis depending on the facts of the case."

Orange tree can help you stay compliant with the latest updates

Background checks are complicated, so it's no surprise that the laws surrounding them are constantly changing. Employers face difficulties because of the complex web of state and local rules. Orange Tree is here to help you navigate this hazardous environment. Our compliance experts monitor legislative trends and new legislation affecting employment screening to ensure that we stay updated with all new rules and regulations.

Schedule a call with us to learn how we can help!