Roughly a month ago, the U.S. House of Representative voted to pass the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, which decriminalizes marijuana under federal law. Most notably, the MORE Act would remove marijuana as a “scheduled” drug under the Controlled Substances Act (CSA). The proposed MORE Act also addresses other marijuana-related topics, such as taxes, denial of federal public benefits due to marijuana use, and protections for cannabis businesses. As explained below, the MORE Act may bring change for employers.

This is not the first time the MORE Act has headed to the Senate. In 2019, a previous version of the bill was introduced as the first piece of federal legislation to propose removing marijuana from the CSA schedule. That bill passed the House by a 228-164 vote, largely along party lines. Ultimately, that version did not progress any further. The bill was revised and reintroduced in mid-2021. After various amendments, the current version passed in the House, receiving a 220-204 vote, again largely along party lines. Now, it’s the Senate’s turn to vote.

All of this begs a question: If marijuana is removed from the CSA, what could this mean for employers?

Current Conditions

As of now, marijuana is a Schedule I drug, meaning that it is illegal under federal law. As a result, the Americans with Disabilities Act, also a federal law, takes the position that individuals who are using marijuana, even for a medical purpose, are not “disabled” because they are engaging in an illegal activity. Therefore, the ADA does not protect medical marijuana users, and you may still terminate employees who fail a drug test for marijuana, have marijuana on their persons at work, or are under the influence of marijuana while on the job, regardless (generally) of what state law says.

However, 37 states currently allow medical marijuana use, and this conflict between federal and state law has created confusion for many. While state law may legalize marijuana for medical purposes, it is still an illegal drug under federal law, so employers are generally free to continue prohibiting and disciplining for marijuana.

If the MORE Act becomes law, all of that would be subject to change. Although it will all depend on what the final law looks like, marijuana would no longer be an illegal drug under federal law, and the Americans with Disabilities Act’s approach on marijuana use may change. If this change occurs, you may want to consider some policy changes. 

Takeaways

If the Senate passes the MORE Act, it would only need the president’s approval, to become law, which is expected. Stay tuned to see how the Senate will vote — passage will require all Democrats and 10 Republicans to vote for the bill. Until then, remember that marijuana is still illegal under federal law, and check your state law for any legalization requirements.  

Questions about COVID-19 vaccines are hard, particularly if you contract or want to contract with the federal government. The scenario is familiar: You run a business that has or seeks to contract with the federal government. You read about the Biden administration’s Executive Order mandating that your employees be fully vaccinated for you to qualify for federal contract work. You read that the order is broad and applies to services, construction, leasehold interest, or concessions contracts performed in country and generally valued above $250,000. You know you have employees who are not vaccinated and resist vaccination. 

What do you do? As it sits today in many parts of the country, there is little definitive guidance besides “wait and see.” The Eighth Circuit Court of Appeals is dealing with the question of vaccine mandates for federal contractors (to be clear, not federal employees themselves — that is a different question entirely) following a lower court’s decision to enjoin the president’s order after Missouri and several other states challenged it.

Background

The impact of the COVID-19 pandemic has been obvious along with the government’s effort to push vaccinations. Under the Federal Property and Administrative Services Act of 1949 (Procurement Act), the president is authorized to “prescribe policies and directives ” to provide “an economical and efficient system ” for federal contracting. Previous case law has interpreted those provisions to give the president flexibility and significant authority in setting procurement policy for federal contractors. In September 2021, President Biden issued an Executive Order directing federal agencies to include a clause in federal contracts requiring any contractor employees to follow COVID-19 protocols, including vaccination requirements.

The states of Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming challenged the Executive Order, arguing that it exceeded the president’s authority under the Procurement Act. The states filed a lawsuit in federal district court in Missouri and sought a preliminary injunction.   

The Missouri federal district court enjoined enforcement of the Executive Order , noting it would permit the president to impose “virtually any public health measure that would result in a healthier contractor workforce.” The district court also noted that the president had not previously used the Procurement Act authority to require federal contractors to ensure their employees were vaccinated against a disease.

Now Before the Eighth Circuit

Not surprisingly, the federal government appealed the lower court’s decision to enjoin the vaccine mandate, and the Eighth Circuit is now considering that appeal. The government recently submitted its brief to vacate the injunction of the vaccine mandate. The government argued that the president’s Executive Order was proper under the Procurement Act and had the required nexus to economy and efficiency for federal procurement. The states will be submitting their response in the coming weeks.

The Eighth Circuit is far from alone in wrestling with this question. The Eleventh Circuit is a little further along in the process of evaluating the same issue following a Georgia federal district court’s order enjoining enforcement of the vaccine mandate nationwide. The federal government appealed, and the Eleventh Circuit heard oral argument a few weeks ago. Comments from the presiding judges in the Eleventh Circuit were skeptical that the injunction should be reversed. The states involved in the Eleventh Circuit case are Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia. Likewise, the Fifth Circuit, (with the states of Indiana, Louisiana, and Mississippi as plaintiffs) and Ninth Circuit (Arizona) are considering this issue as well. 

The Road Ahead…

As of right now, the federal contractor vaccine mandate is up in the air with all the myriad injunctions under review. As the multiple circuits wade through this complex issue, if they arrive at different conclusions, it could be that the validity of the federal contractor vaccine mandate will go to the Supreme Court to solve the circuit split.  

As time goes on, the severity of the COVID-19 pandemic continues to decrease. It seems to follow that precautions the government once considered vital may not be viewed in the same light. That inescapable fact may well play into the ultimate decision for the federal contractor vaccine mandate. All federal contractors should stay tuned.     


In the quest to hire the best employees, employers often look at an employee’s past — past jobs, credit history, and criminal history. If you are conducting  background checks, you know you have to comply with the Fair Credit Reporting Act (FCRA), but what other federal, state, and local laws are out there? Below are some key points to remember and consider:

When can employers perform background checks?

With the exception of certain prohibitions on federal contractors performing pre-offer criminal background checks, federal law does not generally bar criminal background checks. State and local laws, however, may limit when you may conduct a criminal background check on applicants or employees and how you can use this information. For example, some states allow background checks only after you have made a conditional job offer. These laws may also limit how and when you can use a potential employee’s criminal history.

What notices do you have to give when conducting background checks?

If you use a third-party agency (a screening agency, private investigator, or other third party), you must comply with the requirements of the Fair Credit Reporting Act (FCRA). If FCRA applies, then you must provide a disclosure and receive an authorization prior to conducting any background check. Additional requirements apply if you make a negative employment decision based on the background check. For example, before you make a decision, you have to provide the applicant a pre-adverse action notice, a copy of the background report, and an opportunity to rebut the contents of the background report. The FCRA does not limit your ability to make an adverse decision — it simply requires you to provide the notice before you make it.

The Equal Employment Opportunity Commission also has non-binding guidance that addresses how employers should use criminal background information in making hiring decisions. This guidance notes that an employer should generally not screen out applicants based on prior arrest(s) or convictions (e.g., eliminating anyone with a felony conviction). Instead, the EEOC advises employers to create a targeted screening process to allow for individualized assessment based on an applicant’s convictions. For example, you would consider the nature of the offense and the time elapsed, along with the nature of the position for which the applicant is applying to determine whether this particular arrest or conviction would preclude hiring.

Takeaways

Here are some things to keep in mind if you are doing background checks:

  • As always, treat everyone in the same position equally; do not pick and choose what individuals receive a background check as that may result in charges of discrimination.
  • Consult any applicable federal, state, and local laws to confirm what background information you can collect and how you can use the information. For example, New York prohibits inquiries into an arrest that is not pending or did not lead to a conviction and requires that you conduct an individualized assessment using eight different factors (for example, time elapsed since the offense, age at time of the offense, severity of the offense, etc.) prior to denying employment or taking any adverse employment action based on a prior criminal conviction.
  • If you use a third party for background checks, be sure to comply with FCRA requirements.
  • Distinguish between arrests and convictions and, as a best practice, develop a process that allows for individualized review based on the position and any potential convictions.