Information, Tips and News
April 2014

Happy Spring!

It's been a tough winter in many parts, and finally time to spring forward! There is a lot going on everywhere, from blossoms to blooms, and of course, hiring and screening! We always think this is a good time of year to review your disclosure and release form, and we have information to help you clean it up. We will also provide you with a great new link for FCRA/EEOC guidance, and some updates on how medical marijuana can affect employers. We hope you find this helpful and will contact us with any questions.

Phone: 888-833-5304

Email: [email protected] 



Medicinal Marijuana's Impact on Employers

By Kira Barsotti, Human Resources Consultant

Many employers are beginning to wonder about the legalization of medical marijuana and its impact on company practices--and for good reason. Twenty states have now legalized the use of medical marijuana, with pending legislation in many more states. With this new trend, what is an employer to do?

Until recently, nearly all U.S. employers had adopted a zero tolerance policy on drug usage with no worry of violating any state or federal laws. However, state laws such as Oregon, Washington, Montana, and California have made medicinal or recreational marijuana legal, forcing employers to review their policies and re-communicate expectations to their staff.


One thing state laws do make clear is that employers may prohibit use or possession of marijuana in the workplace. While that's a relief, companies are faced with many other questions.

Question: Can employers prohibit employees from working while under the influence of marijuana?

Answer: Employers in every state may lawfully prohibit employees from working while "under the influence" of the drug and may also discipline employees who violate their policy on the matter. However, in some states "under the influence" is more narrowly defined for marijuana than for other controlled substances. Therefore, employers who are unsure of the definition in their state should ensure they understand what "under the influence" means for employees in each state that they conduct business.

Question: Can employers drug test employees with medicinal marijuana cards and take disciplinary action against employees who test positive for marijuana?

Answer: State laws that permit medicinal or recreational use (the state of Colorado and Washington), still allow employers to drug test employees. However, companies need to abide by any other state laws regarding drug testing (e.g., random testing is not allowed in certain states).

Question: What affect do these laws have on the Americans with Disabilities Act (ADA). In other words, if someone is considered "disabled" and using medicinal marijuana for a known condition, what can they do?

Answer:  Companies should take note that medicinal marijuana remains illegal under federal law, and its use is not clearly protected by the ADA. Moreover, the ADA does not consider marijuana use to be a reasonable accommodation for an employee with a disability, even if they are a registered medicinal patient.

Question: If an employer takes an adverse action against an employee on the basis of marijuana use who has a known disability, will they face the same penalties as though the discrimination was on the basis of their disability?

Answer: They would not be faced with charges of discrimination under ADA; however, the BLR advises employers to research whether the employee has protection under the state's medical marijuana use laws.

Our over-riding recommendation to employers wishing to comply with federal and state laws, while maintaining a drug-free workplace, is to review their drug-free workplace policies if they haven't done so in the past 6-12 months. Make sure the policy clearly outlines expectations regarding impairment, marijuana use outside of company time, and drug testing practices. As states continue to pass laws and regulations concerning marijuana use, employers will continue to confront divergent state and federal laws. This means that companies should closely monitor any state developments that impact their workforce and be prepared to periodically review their policies for compliance with both federal and state laws.

For more information on this topic, please contact the Resource Center at Ameriben/IEC Group.
[email protected]


If you have any questions regarding drug testing and medical marijuana, please contact Pamela Mack at [email protected].


Medicine bottle with marijuana




New Guidelines are here to help...


It's confusing.  We get it! The FCRA makes regulations, which states may or may not adopt.  The EEOC publishes guidance, which at times can seem to conflict with what is listed in the FCRA. For the first time, the Federal Trade Commission (FTC) which enforces, in part, the Fair Credit Reporting Act (FCRA), and the Equal Employment Opportunity Commission (EEOC) have combined forces to prepare jointly released guidances on how employers can use background check results and comply with federal law. 

It's even called "Background Checks: What Employers Need to know." Sounds helpful, right? It actually is! We recommend using this information to help summarize the FCRA and EEOC guidance, and to make sure your background check program is compliant.


Click here for the link!


Questions? Just ask us! [email protected]



Reviewing Your Disclosure and Authorization Forms


Several class action lawsuits have come into the news recently against employers, regarding their disclosure and authorization forms for background screening. Both Whole Foods (see side bar) and ClosetMaid have had suits based on the absence of a stand-alone document for the disclosure. The disclosure cannot be part of an application, nor can it have waiver of liability information.


So what can be on the Disclosure Authorization Form?

  • The type of searches which may be performed for the background screen (i.e. criminal searches/education verifications), with keeping sensitive to state restrictions such as the California restriction on credit checks.  However, if you don't list it you can't obtain it.
  • The actual acknowledgement and authorization, which allows the employer to use the Consumer Reporting Agency (screening vendor) to obtain the type of information listed on the form.
  • State Restrictions/Requirements- For example, a notification section allowing a consumer to request a copy of their consumer report (CA, MN or OK).  The Federal Trade Commission however, has cautioned against making the forms too confusing.  If a state restriction does not apply to your company and applicants, removing that information might be in your best interest.
  • CRA contact information and instructions on how consumers can request a copy of their consumer report.

Along with the stand-alone disclosure and authorization, it is required that you hand your applicants their Summary of Rights under the Fair Credit Reporting Act.

If you have not updated your forms in 2013 (or more recently), we strongly recommend you do so, as FCRA information was changed at that time and your form is likely to be outdated.


Need a new sample disclosure form? Just ask!

Need a Spanish Version? We can provide that as well.

Email [email protected] or call 888-833-5304


Online Disclosure and Chain of Custody forms

Did you know Occuscreen can offer a paperless system for your Disclosure and Authorization forms and/or your drug screen  Custody and Control forms? An electronic process can  streamline the onboarding of your applicants, along with reducing the "paper trail" in your screening process.  Ask us about the options detailed below for online forms.


Online Disclosure and Release forms:  Occuscreen's "Quick App" process allows you to email an electronic Disclosure and Authorization Form (via a secure link) to your applicant for online completion.  Once the form is completed, an email alert is automatically sent so you can submit the order for processing.  All of this at no additional charge!


Online Custody and Control FormsElectronic drug testing forms can be created for employees using Quest or LabCorp collection sites.  The forms can be forwarded to applicant's via email, eliminating the need for hard copies in your office. 


Please contact us for questions about these processes, and other options by emailing [email protected] or calling 888-833-5304.


Please let us know if there are questions, areas of interest you would like us to address in future newsletters, or if you are interested in partnering with Occuscreen for employment screening.


Pamela Mack


[email protected]

In This Issue
Medical Marijuana
FTC Employer Guidance
Review Your Disclosure Forms
Online Forms Available
Legal updates

News and Legal Updates


Legal Update: San Francisco Restrictions on Employers

Effective August 18th, 2014 new ordinances in the City and County of San Francisco will limit the information that employers of more than 20 employees can use to make employment decisions.  The ordinances regulate the time when employers can inquire in to criminal history and what information employers may consider when making hiring decisions.  In addition, the ordinances touch on the requirement of Individualized Assessments and specifics around the Pre-Adverse/Adverse Action Notices.



County Court Update: San Luis Obispo Superior Court (CA) Cuts Criminal Record Services

Due to severe cutbacks in the budget and loss of staff, the public record services for criminal records from the San Luis Obispo Superior Court is now virtually at a standstill.  This court is "clerk assisted" and records are not online for public access.  Due to this, and other factors involved (including a new computer system at the court), employers should expect the turn-around time for records in this area to be delayed.  If you have any questions regarding this court, or records out of this area, please inquire with Occuscreen at 888-833-5304.



Whole Foods Faces Class Action Suit Over Criminal Background Checks

A class action lawsuit has been filed against Whole Foods Market, for alleged violations of the Fair Credit Reporting Act (FCRA).   The complaint filed in California federal court claims that Whole Foods used their online application to also gain consent for consumer reports, which did not meet the FCRA requirements.  The forms, which have been used since 2009, contain waivers releasing those who run the reports from all liability.  Per the FCRA Section 1681b(b)(2)(A)(i), the Disclosure and Release form should be a standalone document that contains nothing other than the required disclosures and requested authorization (without any liability waivers).  The proposed suit asks Whole Foods to pay $1000.00 to each class member for the violation and applies to all individuals who gave Whole Foods permission to obtain a background check through its online authorization forms from January 2009-present.
If you have any questions regarding your Disclosure and Authorization forms for screening, or FCRA compliance, please call Occuscreen, LLC at 888-833-5304.


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Most of our new business comes from referrals sent by our existing clients. We appreciate it and thank you for trusting us with your colleagues!


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