Talent acquisition is an ever-evolving industry. Between new federal, state, and local laws and best practices that change seemingly overnight, keeping up with the latest trends that impact your hiring practices can be overwhelming. To help our clients navigate these challenges, InCheck sends our experts to the Professional Background Screening Association’s (PBSA) mid-year conference. The convention affords us the opportunity to collaborate with other industry leaders and bring back the latest insights every HR professional should be aware of.

This year’s conference yielded valuable updates on the shifting legal landscape surrounding two perennially important topics: background-check accuracy and drug testing. Let’s take these issues in turn by addressing two important questions:

  • How do you accurately identify candidates for criminal background screening as more jurisdictions tighten their privacy laws?
  • How do you protect your employees and customers from the growing threat of workplace marijuana use while complying with liberalized drug laws?

Balancing act: ensuring accuracy, protecting privacy

Employers face a perilous balancing act today. The Fair Credit Reporting Act (FCRA) requires consumer reporting agencies to “follow reasonable procedures to assure maximum possible accuracy” when running a background check on a job candidate. Companies that fail to follow such procedures are more likely to attribute a record to the wrong individual, inviting expensive fines and lawsuits.

The PBSA says that utilizing at least two identifiers helps to mitigate these potential liabilities, but that’s where things get complicated. Some jurisdictions, California, and Michigan for example, are strengthening their protections against identity theft, in part by limiting public access to identifiers such as date of birth. In sum, the information consumer reporting agencies need to ensure they are providing accurate background checks to employers is increasingly harder to access.

So how do you balance the law’s contrasting demands for accuracy and privacy? There are several workable solutions to explore. Depending on which state the candidate is in, you can include a criminal questionnaire as part of the onboarding process. Wisconsin, for example, allows candidates and employees to self-identify or self-report in this manner, and this practice is acceptable both pre- and post-hiring.

Companies can also design HR policies to address a unique circumstance. For example, CRAs ran into challenges during the initial phase of the COVID-19 pandemic, when counties were shut down, but employers still had to make hiring decisions. Some employers made contingent employment offers based on available information, closed out searches that couldn’t be completed, and later re-opened these searches once counties were back in operation.

Another option to explore is to pull a county-level search, if possible, when a state blocks the necessary personal identifier, vice versa if a county blocks an identifier. If a county and state both block the identifier, a national search may catch some of the required data.

Mitigating the marijuana threat

Relaxed drug laws pose a similarly troubling challenge to employers. States that have enacted recreational marijuana-use statutes, for example, have also reported significant increases in positivity rates. “Marijuana continued double-digit year-over-year increases in the general U.S. Workforce,” Quest Diagnostics explained in a recent report. However, the analysis also uncovered “… lower positivity rates in states with only medical marijuana use or no form of legalized marijuana use versus states with legalized recreational statutes.”

1987 Maryland Amtrak train collision caused by the crew's marijuana use. Image credit: Department of Transportation
1987 Maryland Amtrak train collision caused by the crew’s marijuana use. Image credit: Department of Transportation

The hazards posed by increased marijuana use have been thoroughly documented. One troubling study found that 13 percent of 182 heavy-truck crashes in which the driver was killed involved cannabis, Jo McGuire, executive director of the National Drug & Alcohol Screening Association, reported during her PBSA conference presentation. Research has also shown that workplace marijuana use is associated with:

  • 55% more industrial accidents
  • 85% more injuries
  • 75% more absenteeism

The question then arises: how do employers prevent these tragic, costly outcomes without running afoul of liberalized drug laws? No state has yet banned drug screening, McGuire added during her presentation, though some have enacted restrictions employers should be aware of. The key to protecting your staff and customers while complying with the law is to emphasize safety. Set a zero-tolerance policy for working under the influence and enforce it with a robust drug- and alcohol-testing program.

Your drug and alcohol policy will hold up if challenged in court, but it must be “current, actively enforced, and known to your employees,” McGuire noted. Success here comes down to reviewing your policy annually, at minimum, and following it consistently. Moreover, while recreational marijuana use may now be legal in some states, it’s still prohibited by federal law. Failing to test for marijuana use can be dangerous under these circumstances. Highly regulated and fast-paced industries like healthcare, energy, and manufacturing simply can’t afford to employ impaired workers and risk serious accidents.

But what exactly should your policy look like? What specific requirements should you set? However you answer these questions, don’t trust what you read on the internet; turn to experienced experts who can craft specialized background- and drug-screening programs that meet your unique needs and the specific standards of your industry. Going your own way could prove very costly.

How Can InCheck Help?

When it comes to background check accuracy and drug testing, there is a lot to think about. We can help you review your company’s process, protocol, and services. Reach out to hello@inchecksolutions.com or complete this form to set up a consultation.

Disclaimer: This blog is for general informational purposes only and should not be construed as legal advice.

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