Pardon Me, Mr. President

Have you heard? On October 6, 2022, President Joe Biden announced his intent to “pardon all prior Federal offenses of simple possession of marijuana.” Ironically, this announcement will result in zero individuals being released from prison as, according to White House officials, there are no individuals currently in federal prison solely for simple possession of cannabis. However, because most Americans have state-level cannabis records rather than federal convictions, President Biden, in his announcement, urged state leaders to act and take similar action. “I’m calling on governors to pardon simple state marijuana possession offenses. Just as no one should be in a federal prison solely for possessing marijuana, no one should be in a local jail or state prison for that reason, either” President Biden said.

President Biden’s announcement signals the most significant effort of any President to enact a change to the current federal approach to cannabis. According to estimates provided by the U.S. Sentencing Commission (USSC), pardoning individuals with low-level federal marijuana possession convictions will provide forgiveness for nearly 6,557 citizens. The greatest percentage of individuals eligible for relief, based upon USSC analysis, are located either in the southwest of the mid-Atlantic region of the U.S. Further, according to a Monmouth University Poll, the decision to support legalizing marijuana has been met with broad public approval.

This approval is reflected in the decisions of nearly two dozen states that have enacted legislation explicitly facilitating the process of having select of having select marijuana convictions expunged, vacated, otherwise set aside or sealed from public view. In some states, the expungement process is performed automatically by local jurisdictions; in other states, those with past convictions will need to petition for expungement. In Virginia, former Governor Ralph Northam decriminalized simple marijuana possession which action included sealing the criminal records of past marijuana offenders from employer and school administrators.

President Biden’s pardon announcement is expected to affect thousands of Americans. The effort will lift some barriers to employment, housing, and access to federal loans, for example. In Virginia, employers cannot require job applicants to disclose information regarding arrests, charges or convictions for simple possession of marijuana. Employers can, however, ask about other criminal convictions but must state that the conviction is not an automatic disqualification to employment. In states where employers can ask about an applicant’s arrest and conviction records, there will simply be nothing to disclose. It is important to know that the pardons do not directly impact or change federal or state employment laws in that employers can still use background checks in a nondiscriminatory way to screen applicants under federal law. That being said, information learned about a past criminal record should not be used if it could have a disparate impact or if it is not job-related. Further, the pardon announcement excludes non-citizens meaning that possession of cannabis for non-U.S. citizens remains a deportable offense.

In addition to announcing his intent to pardon low-level federal cannabis possession convictions, President Biden has also called for the rescheduling of cannabis. Cannabis has been a Schedule I drug since the passage of the Controlled Substance Act of 1970. That category is reserved for substances with no medical value and a high misuse potential. Following the rescheduling announcement, Janet Woodcock, the U.S. Food and Drug Administration’s (FDA) Principal Deputy Commissioner announced that the FDA was “diligently looking at the scheduling of marijuana under the Controlled Substance Act.” After undertaking a scientific review of cannabis, the FDA will hand off its scheduling recommendation to the Drug Enforcement Administration (DEA). It is important to remember that the review process does not necessarily mean that cannabis becomes federally legal; rather, it would just move cannabis to a lower category on the Controlled Substances Act.

While some long-awaited and anticipated movement is beginning to occur at the federal level regarding cannabis, a quick recap of the important considerations that need to be given to the types of cannabis-using employees in Virginia is always prudent:

• Employees who use marijuana recreationally will not be protected from employment discrimination. Employers can require drug testing at any time.
• Employees who work in positions that are safety-sensitive or regulated by outside authorities, including federal contract work, are not protected when it comes to marijuana use in any form. Marijuana testing can occur in the absence of signs of impairment and even if employee had been certified to use medical marijuana.
•  Medical marijuana cardholders are afforded the greatest employment protections. If an employee discloses they have a medical marijuana card and a drug test comes back positive, employers may not terminate or discipline the employee solely on the basis of the positive test. Employers should carefully document all other reasons that would support an adverse employment action.

Should you have any questions about the issues discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.

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