How California’s New 2008 Marijuana Law Affects Employers
Effective January 1, 2018, California pursuant to Proposition 64 (Adult Use of Marijuana Act) now has in place newly developed laws as to the use and possession of marijuana. This brief Memo summarizes how those laws may impact the workplace.
By now you are probably heard that effective 6:00 AM on January 1, 2018, it is now legal for anyone 21 years or older and showing a driver’s license to purchase an ounce of marijuana from a licensed dispensary. Possession and use is now allowed even without a medical prescription– although smoking in public (bars, restaurants, parks, streets, and other public facilities) is prohibited and carries a fine of between $100 and $250.
On the other hand, this new law has no effect on the right of an employer to regulate such use as seen in the next section.
NO CHANGE AS TO WORKPLACE POLICIES:
The new law does not affect an employer’s workplace drug policy. Proposition 64 de-criminalizes recreational marijuana and does not affect an employer’s right to regulate such usage in the workplace.
Specifically, Proposition 64 provides it is not intended 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.”
In addition, marijuana is still considered an illegal controlled substance (Schedule 1) under federal law.
OPERATION OF A MOTOR VEHICLE:
It is still against the law to operate a motor vehicle while under the influence of marijuana. Employees that do so before and after work or on weekends are responsible for their own actions. Frankly, it is their own business.
But you should inform your employees if they are using company vehicles (cars or trucks) commuting to and from work, company policy prohibits being under the influence of marijuana during those periods. In other words, it would be both against California law and your company policies.
The law is unchanged in prohibiting an employer on a job application form to inquire as to whether the prospective employee uses marijuana, alcohol or other illegal drugs (Ban the box law).
On the other hand, once a conditional offer of employment is made, any employer, regardless of the number of employees, can require a drug test. And if tested positive, employment can be refused. But remember, if you implement such a policy, it must apply to all applicants.
This simple rule should be stated in the job applications so the prospective employee will be informed of those ratifications.
NO RANDOM TESTING:
California law does not allow random testing for drugs or alcohol. Exceptions are specialty industries such as aviation, operating heavy machinery, armed employees, demolition services, trucking, maritime, security, burglar alarm companies and the like.
TESTING UPON REASONABLE SUSPICION:
On the other hand, it is proper to require a drug or alcohol test if the employer has a reasonable suspicion of intoxication and that it is directly affecting job performance. It is also reasonable to do so if the following has occurred:
• A reasonable suspicion that an employee has been involved in the sale, purchase,
use, or distribution of illegal drugs on the worksite or while performing job
• After a workplace accident
• After an accident or incident off-site while on company business
• When the employee has violated a safety rule
RECREATIONAL USE WHICH OVERLAPS THE WORK ENVIRONMENT:
A question that comes up frequently is what if you suspect an employee is smoking marijuana after work and/or weekends and might still be partially under its influence during working hours. For example, an individual smoking marijuana late Sunday night and then showing up Monday morning still experiencing its effects.
This is a troublesome issue because the employer has no right to regulate what occurs during non-working hours. In many cases, even though the THC may still be in one’s system, it is not affecting job performance.
On the other hand, if it does affect job performance, including disorientation, slurred speech, dilated pupils, incoherency, a strong marijuana odor, pointless giggling, slow reflexes, inattentiveness or other instances, and if it reaches such a level that you have a reasonable suspicion it directly affects job performance, you can require immediate testing. And if the individual refuses, it would be grounds for termination.
On the other hand, if there is no effect on job performance, one cannot discriminate against an employee for recreational use of drugs or alcohol.
Can you prohibit an employee from using or ingesting marijuana during working hours after receiving a doctor’s prescription–namely the use of medical marijuana?
A case directly on point is Ross v. Ragingwire Telecommunications, Inc., 42 Cal.4th 920 (9th Cir. 2008). The individual tested positive in pre-employment screening, but had medical marijuana proof from a physician. Nevertheless, the offer of employment was withdrawn. The court held that neither the ADA nor any California law would require the employer to so hire this individual. There have been various attempts to supersede this law in the legislature, but as yet this has been unsuccessful. This is even acknowledged by the FEHA.
Be careful here. If you allow the use of medical marijuana, but deny it for all other employees, because both uses are still against Federal law, you would inadvertently be condoning violation of that Federal law.
On the other hand, there is technically no reason why you would not allow medical marijuana use with a doctor’s certificate, as long as there is no showing of impairment of work performance.
SMOKING DURING BREAKS:
It is a popular misconception among some employees that they are entitled to smoke marijuana during their customary 30-minute meal break. During this break, an employee need not stay on company premises and can go “out” for lunch at a different location.
The law is unclear as to whether an employer can prohibit this during such a break. But the law is clear that employers can implement a drug and alcohol-free policy. If one were to ingest or smoke marijuana during a 30-minute break, it is inescapable that returning to work they would be under the influence. And as such, it would be a violation of company policy. Effects of marijuana simply do not dissipate within a matter of minutes. It would then be logical to allow testing if there was a reasonable suspicion of being intoxicated.
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