‘Are you overlooking tens of millions of people?’: Why employers are reconsidering applicants’ prior drug use

The U.S. economy gained 235,000 jobs in April, but the labor market is still tight: The fact is that there are more jobs open than there are people to fill them, which means employers are desperately looking for workers. In response, some—even the federal government—are easing up on drug policies as a way to remove barriers to employment.



The government has long been strict about drug use around hiring, both internally and with the companies it works with; a 1988 act requires federal agency contractors and grantees to guarantee a drug-free workplace. But that’s changing, at least for marijuana. The New York Times reported recently that the federal government has been “significantly relaxing drug screening rules” as agencies struggle with hiring. That includes the military, which has given new recruits who failed a drug test a “grace period” to try again, and agencies like the CIA, which in April 2022 began advising applicants to refrain from using marijuana for 90 days before applying—previously, abstaining from marijuana use was a yearlong requirement.



And in the near future, The Times reports, the Biden administration is expected to scale back “how deeply” the government looks into the drug histories of those applying for a security clearance. (Previous policies may have differed by agency, but many security clearance processes, whether for the military or Secret Service, have long included diving into a prospective hire’s history of drug use.)



Recreational cannabis is now legal in 22 states, and medical marijuana use is legal in 38 states. Some of those states, including New York and New Jersey, have banned companies from discriminating against employees who use marijuana legally. But other states continue to allow drug testing, and since marijuana is still illegal at the federal level, the government has a history of querying prospective hires about their drug use.



As the nation’s largest employer, the government has felt the constraints of a tight labor market and has to compete with the private sector, explains Daniel Yanisse, cofounder and CEO of Checkr, a company that aims to democratize the process of employer background checks. Checkr works with private companies to “unblock” potential candidates who may have been shut out of jobs previously because of their criminal records, including drug convictions.



“Government drug policies and screenings are quite strict, or go back decades and haven’t been updated, which creates quite a bit of friction for the government to be able to compete [for] labor talent,” Yanisse says. “So I see this as a pragmatic change that I think will help the federal government and other agencies to hire faster or to be able to compete for talent with the private sector.”



Though these changes are happening at the federal level, Yanisse sees them potentially impacting private-sector employers as well. Changing views from the government could “influence the standard” elsewhere, he adds, especially for private-sector employers who may work with or have contracts with the government.



But if companies are doing away with drug tests or questions about prior drug use, Yanisse contends that they should also avoid denying jobs because of prior marijuana convictions. A handful of states, including New Hampshire, Oregon, and Colorado, are working to clear or hide prior marijuana convictions where the drug has been legalized. Still, just because residents of some states are now able to use marijuana legally doesn’t mean prior convictions have been removed from their record. Removing convictions from one’s record is often expensive and time consuming; Checkr works to streamline the process.



Employers can also use Checkr to filter what charges show up on background checks—for instance, showing a charge for driving under the influence for a position as a driver but not irrelevant charges that may lead to bias against that applicant. In 2022, Checkr says it helped “unblock” more than 128,000 candidates with marijuana charges at employers’ request. This is just a small portion of people with such charges: Between 2001 and 2010, there were 8.2 million marijuana arrests, according to the American Civil Liberties Union—88% of which were “for simply having marijuana.” Additionally, such convictions have disproportionately affected Black Americans.



In October 2022, President Biden announced a “full, unconditional, and categorical pardon” for federal offenders convicted of “simple marijuana possession” (as well as those charged in the District of Columbia). He called on governors across the country to do the same in their states. “There are thousands of people who were convicted for marijuana possession who may be denied employment, housing, or educational opportunities as a result,” Biden said. “My pardon will remove this burden on them.”



For proponents of fair-chance hiring like Yanisse, there’s hope that changing attitudes about marijuana may spread more broadly to anyone with a prior conviction. One in three Americans have a criminal record, ranging from drug convictions to driving violations, and those people may be missing out on employment because of background checks that flag their histories.



“It’s very important, especially if you’re an employer, to think about, are you overlooking tens of millions of people? And who are you rejecting and why?” Yanisse says. “As we work with customers, many realize, ‘Hey, you know what, I was thinking about it in a narrow way in the past, and there are actually a lot more candidates who are qualified who I can bring into my workforce.’”