On November 8, 2016, California voters approved the Adult Use of Marijuana Act (“the Act”). Legalization of marijuana for recreational purposes will be a significant change to current law, however, is not expected to interfere with the right or ability of California employers to implement and enforce their workplace drug policies, including drug-testing policies.
Specifically, the Act does not impact the right of a California employer to prohibit marijuana use nor will it require an employer to accommodate such use. The Act provides that it shall not be construed or interpreted to amend, repeal, affect, restrict, or preempt:
“The rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace, or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.” (Section 11362.45 (f))
Furthermore, employers should keep in mind that marijuana remains a Schedule I drug under the Federal Controlled Substances Act. As a result and consistent with a 2008 California Supreme Court decision of Ross v. RagingWire, 42 Cal. 4th 920 (2008), upholding the right of an employer not to hire an applicant who tested positive for marijuana recommended by his physician, employers can continue to rely on federal law and enforce their workplace substance abuse policies.
Employers should also keep in mind that both federal and state laws require employers contracting with the government to maintain a workplace free from drugs and certify that the business is drug-free. Both federal and state drug-free workplace acts prohibit use of “controlled substances,” as defined under the federal Controlled Substance Act. Also, both state and federal law impose strict drug testing and other related requirements on employers and operators engaged in commercial transportation. As such, employers must continue to comply with drug-free workplace laws.
California employers may continue to conduct pre-employment drug testing of all applicants before hire and deny employment if the drug test comes back positive. This holds true even if the applicant was legally using marijuana under the state’s Compassionate Use Act. The Adult Use of Marijuana Act does not intend to interfere with these workplace policies or practices.
However, drug testing for existing employees is more complex. Generally speaking, you may not require employees to submit to random drug testing, except under certain narrowly defined circumstances, or if it is required under federal law. Random drug testing is generally only allowed for safety-sensitive jobs. However, certain cities such as San Francisco have enacted local ordinances relating to subjecting employees to drug testing.
Regardless of whether employers will conduct pre-employment drug testing and/or drug testing for existing employees, employers should make it clear as to whether or not the drug test will include marijuana use.
In sum, the policies and practices aimed at maintaining a safe and drug-free workplace may continue even after the passage of the Act. Any policy should make it clear that for purposes of drug testing, marijuana is an illegal drug. If desired, the policy should also ban the use, possession or sale of drugs in the workplace and on company property as well as being under the influence of an illegal or controlled substance while on the job, including alcohol and marijuana. Supervisors should also be trained to identify signs of drug or alcohol use.
Employers should clearly communicate and enforce their workplace policies and practices to their employees. All employers should disseminate written policies clearly delineating the circumstances under which they can and will perform non-discriminatory drug screenings and should require all employees to sign an acknowledgment of receipt.
At Garcia & Gurney, ALC, our Pleasanton employment lawyers strive to help employers in the Pleasanton, Alameda, and Contra Costa areas remain compliant with the ever-evolving employment laws. Our legal associates can help you create and implement workplace policies. To consult with an employment attorney today, contact our law firm at 925-468-0400.
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