Marijuana is still an illegal substance at the federal level. However, at the state level there are only eight states that have not made marijuana use legal to some degree. The biggest majority of states have legalized marijuana at the medical use level. There are 11 states which have decriminalized the use of marijuana for medical or recreational use. This can affect past criminal records.
Colorado has “Clean Slate” legislation that allows defendants to request that criminal records be sealed from 1 to 5 years after the final disposition or after the person was released from supervision. Because Colorado has fully legalized the use of marijuana, this legislation is important for job seekers who may have had records regarding marijuana use or possession.
Nevada enacted legislation that allows anyone who was previously convicted of a crime that has since been decriminalized to request any records involving those crimes be sealed. Nevada has legalized possessing up to 1 oz. of marijuana, so anyone previously convicted of possession up to 1 oz. may now request that those records be sealed. This state also prohibits employers from rescinding job offers based on testing positive for marijuana unless the job falls into specific categories.
West Virginia also allows those convicted of certain misdemeanor charges one year after the conviction and completion of required incarceration/supervision or two years after the same criteria for multiple misdemeanor convictions. Non-violent felony charges may also be expunged five years after the conviction and completion of required incarceration/supervision. There are certain circumstances in which a person may be eligible for accelerated expungement.
The change to laws regarding the use of marijuana is leading to a change in other laws regarding the substance. The Governor of the state of Virginia gave approval for:
- Doctors, licensed nurse practitioners, and physician’s assistants to recommend the use of CBD or THC-A for any condition
- Registered patients to legally use CBD and THC-A rich medical cannabis products
Lawmakers in Virginia have also approved, “a revised version of SB 976, which will allow marijuana extracts containing at least five mg of either cannabidiol (CBD) or THC-A and no more than 10mg of THC per dose beginning on July 1, 2020. It also allows up to 25 dispensing locations.”
Virginia has also made changes in employment law, and now has ban-the-box legislation that prohibits employers from asking applicants to disclose any information on arrests, criminal charges, or convictions for simple possession of marijuana. This new law also gives applicants a statutory right to not disclose this information to potential employers. Employers beware, if you willfully violate this new law you can be charged with a Class 1 misdemeanor, and this charge could lead to fines and jail time. Don’t be surprised if other states follow this lead.
New Jersey prohibits adverse employment actions against medical marijuana users by employers when the action is based solely on the employee being a medical marijuana user. New Mexico and Oklahoma have similar laws. The state of New York bans pre-employment drug testing for marijuana.
Michigan has a process for expunging records; those eligible can only have one felony or two misdemeanors on their record and can apply after five years from the end of their sentence. The process is so limited and cumbersome that most people who are eligible to have records expunged, close to 95%, don’t try. There is a Michigan Clean Slate initiative in the works, but the proposed legislation has not yet been passed into law.
Laws regarding the possession and use of marijuana are constantly changing along with the laws on what employers can do with the criminal records regarding the substance. It is so important for employers to keep up on the changes in all of the locations where they do business, and to consult with their legal counsel anytime they are unsure of decisions they can make or actions they can take when the various laws come into play.
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