California Termination for Testing Positive (marijuana) in Pre-employment Drug Test

 In Mechanic’s Lien Law Updates and News

It is well-known that California is one of the states that allows recreational use of marijuana. But how does it affect the workplace? As seen below, employers may still enforce their no tolerance drug or alcohol policies in places of employment, notwithstanding that recreational allowance.

What an employer may not do is: a) have a box in the employment application asking about arrests, convictions or use of marijuana; b) random drug testing as to current employees unless there is a reasonable suspicion of use or there is a DOT requirement; c) discriminate in the drug testing, in other words not applying it uniformly to all employees.

This issue came before the California Supreme Court in the case of Ross vs RagingWire Telecommunications (2008). The employee’s physician had recommended marijuana use for chronic pain, but was fired when a pre-employment drug test revealed the presence of marijuana in his system. As in most California Supreme Court cases, there was a detailed and comprehensive analysis of the law. The bottom line is that the court drew the line as far as employment practices and allows employers to withhold retention of an employee who tests positive. In summary the Court stated:

“Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees.   Under California law, an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions.”

The ancillary questions are: Does there have to be proof the person is intoxicated during working hours? What if a person is a recreational user on the weekends, but does not smoke it while on the job? Is any presence of marijuana in the system sufficient for withdrawing the conditional offer of employment?

The answer to all these questions is that the employer has the right to refuse employment. There is nothing in the case law or statutes that gives an exception. In other words, there is no requirement of proving intoxication during working hours. Being tested for having it in your system would be sufficient.

And this makes sense from a practical standpoint. The courts are not going to decide how much or how little is in your system. It could be that even small amounts would have some effect on job performance and safety.

And be very careful about potential discriminatory practices. If you hire this individual because you think he has only a small amount of marijuana in his system, but then refused to employ someone else who has similar amounts, you are not being uniform in your decision. To be safe, you should have a policy that any presence of a drug would be sufficient to withdraw employment.

–National Lien Law can act as your virtual Human Resources Consulting Firm–either replace your existing HR Department or augment it with our ongoing human resources consulting services. And, we are equipped to prepare any documents required (for example, termination notices, warnings, employment agreements/confidentiality/noncompete, employee handbooks, write-ups, responses to claims, wage and hour disputes, legal memos to management, response to attorney demands, legal investigations, help with arbitrations or language used in your emails and communications with employees). Services can be on a retainer basis, hourly or flat fee. Our human resources consultants have law degrees and 20+ years’ experience in human resources consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.

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