WHY IT SHOULD NOT IMPACT EMPLOYER BASED DRUG TESTING

On November 8, 2016, California voters approved Proposition 64, the Marijuana Legalization Initiative (often called the Adult Use of Marijuana Act), making California one of seven states legalizing the recreational use of “pot”.  Given that the vote happened a full 20 years after California became the first state to legalize medical marijuana in 1996 and that the proposition included a 62-page comprehensive plan for taxing, regulating, permitting and licensing of the cannabis industry in addition to reducing penalties for use of Marijuana, some citizens may be surprised to find out that all that advance preparation does not mean that they will have as easy, penalty-free access to Marijuana as they may have believed.

Despite the possible perception in many people’s minds of greatly increased personal freedom with regard to the consumption of pot under the law, proponents of the measure had many more social interests in mind when supporting legalization rather than recreational use.  Some of the stated reasons for passage were to incapacitate the black market which has benefited drug cartels and violent gangs which have been jeopardizing the public safety; to create criminal justice reform alleviating stress on the courts from a prevalence of cases related to non-violent offenders; and to allow a reduction in penalties for certain offenders, generally users under the age of 18, after they have met certain court prescribed requirements.

However, even in states with the most liberal marijuana laws, employers are seemingly given deference to police their workplace for marijuana use and its implications for workplace safety.  And, California voters seem to be no exception to this concept.  When Californians last voted on recreational Marijuana legalization in 2010, authors of Proposition 19 added a clause prohibiting employers from disciplining workers for Marijuana use unless their performance was impaired.  The executive director of the California Cannabis Industry Association at the time, labeled that clause as a “poison pill” that defeated the passage of Proposition 19.

SO WHAT ARE THE PROVISIONS OF THE NEW LAW?

General Provisions

In general, the law treats cannabis similar to alcohol. Consumption is limited to people 21 or older and forbidden in most public spaces. Pot will be highly regulated and heavily taxed.  The law sets up a comprehensive system governing marijuana businesses at the state level and safeguards local control, allowing local governments to regulate marijuana-related activities, to subject marijuana businesses to zoning and permitting requirements, and to ban marijuana businesses by a vote of the people within a locality.  Adult use retail sales of Marijuana will begin January 1, 2018.

Adults 21 and older are allowed to possess, transport (not across state lines), purchase, and use up to an ounce of dried marijuana flowers and 8 grams of cannabis concentrates, and they can grow up to 6 marijuana plants indoors. Outdoor cultivation is subject to local restrictions.

Criminal penalties for non-serious marijuana-related offenses, such as possession of more than 1 ounce of marijuana, are reduced to misdemeanors.  Persons with prior marijuana-related convictions can petition the court to have their record cleared or changed to reflect the new laws. Personal information of medical marijuana patients disclosed to state and local health departments is protected under the Confidentiality of Medical Information Act.  Medical marijuana patients cannot lose their custodial or parental rights solely based on status as medical marijuana patient.

The Initial Key Factor to Note:  Proposition 64 took effect immediately upon its passage, giving adults over age 21 new rights to use, possess, and grow certain amounts of nonmedical marijuana.  But retail locations for recreational marijuana will not be opening until January 2018, leaving a year-long gap before California residents can legally buy the product.

So most legal advice to consumers is to tread lightly with regard to usage since they can still be under scrutiny as to where they were able to purchase non-medical Marijuana, including the seeds or plants, legally – meaning current usage detected in a drug test can be questioned.

Provisions Related to Employment Drug Testing

Proposition 64 explicitly “allow[s] public and private employers to enact and enforce workplace policies pertaining to marijuana.”  This is critical language that was included in Proposition 64 in order to protect employers.

Prop. 64 also states that employers remain free to test workers for marijuana use before hiring them, or at any point during their careers. And if workers test positive, the law says companies can choose to let them go – even if there’s no indication they were actually high on the job.

 The National Law Review perhaps summarizes the implication of Proposition 64 the best on its website (http://www.natlawreview.com/article/impacts-proposition-64-california-employers):

  • Proposition 64 is not expected to affect an employer’s workplace drug policies. Proposition 64’s primary component is the decriminalization of recreational marijuana use, not banning or restricting an employer’s ability to regulate marijuana usage in the workplace.
  • Proposition 64 explicitly allows public and private employers to enact and enforce workplace policies pertaining to marijuana.
  • Proposition 64 explicitly provides it does not 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.”
  • Under the Controlled Substances Act, Marijuana remains a Schedule I drug (a designation for controlled substances prone to abuse and psychological/physical dependence). Hence, employers can still rely on federal law to refuse to hire applicants who tested positive for marijuana use.
  • In the meantime, employers should review their drug policies to ensure that potential applicants and employees clearly understand their expectations on Marijuana use.

 

Employers should, of course, always stay current on their state and local laws with regard to these issues to ensure that they are compliant.

Important Reminders to Both the Employee and the Employer

The reality is that drug testing will/can continue to be in place with minimal disruptions.  Marijuana is still considered a mood-altering substance.  Other mood-altering substances such as alcohol and prescription drugs are legal, but may be restricted in the workplace and tested for in accordance with company policy to ensure safety in the workplace.  In addition, federal law does specifically require drug testing in safety-sensitive industries such as transportation and aviation.

Respected human resources authorities point out that people want to believe they have certain job protections that they don’t have.  Most employment in the United States is at-will, and as an example, there are companies who will not hire known alcoholics or smokers or will make job decisions based on how an employee uses social media accounts.

Federal law says companies can’t discriminate based on things like gender, race, age, religion or disabilities. Some states have tacked on additional protected classes of workers, with California adding that jobs can’t hire or fire people based on their sexual orientation, military status or health conditions. Use of Marijuana, prescription drugs, alcohol, and tobacco do not fall within a protected class.  And, even in states with legalized use of medical Marijuana, many court cases do not protect a worker with a medical prescription for Marijuana – as well as other prescription drugs – from termination if they are jeopardizing the safety of other workers by use of the prescribed drugs at the workplace.

 

Recreational Marijuana users who hope to see drug testing change may want to note a few items:

  • Although employers may have tended to see the use of Marijuana as less threatening to workplace safety recently, in actuality, many employers have now actually begun to scrutinize their policy on testing for the substance in order to (a) avoid discrimination issues related to testing for it versus other drugs or alcohol and (b) address concerns that Marijuana may actually begin to be used in a more liberal manner that could impact workplace safety more frequently, now that use has been legalized.
  • Unlike many other drugs which dissipate from a user’s system within 24 hours, Marijuana is stored in fat cells and is metabolized differently by each individual, also depending upon the potency of the drug. So although you may not feel impaired at your job or while driving, the signs of cannabis use may still remain in your system longer than you have anticipated.  Prop 64 does not set a legal limit on drug potency found in the system, but it does direct $3 million a year from the eventual tax revenue to the California highway patrol to research and determine what might be a reasonable legal limit for Marijuana testing. However, it is not encouraging that this issue is still being addressed in Colorado, which legalized recreational marijuana in 2012.
  • The tobacco and liquor industries have highly effective lobbying groups, but they have not had success in gaining employment and testing protections for purchasers and users of their products. So it is fairly unlikely that Marijuana users will be protected in any special way with regard to employment drug testing considerations.

 

THE BOTTOM LINE — Although employers cannot force a job applicant to take a drug test, California courts have determined employers can make passing a post-offer drug test a condition of employment, assuming there is no conflict with existing law and the testing is performed in a uniform, non-discriminatory manner.  See Loder v. City of Glendale, 14 Cal.4th 846 (1997).  In addition, under this case, California employers are generally given deference to conduct employee drug testing to eliminate a potential risk of harm to their business and their employees’ safety.

A New Legal Consideration for Employers

 New court cases across the country are upholding Corporate Liability for Careless Hiring and Retention.  Government scrutiny of business operations has become more intense in new ways, and the courts are increasingly holding corporations legally responsible for the acts of their employees.

Attorneys report that courts have decided that someone who is injured by your employee (including another employee) can sue you for failing to take reasonable care in hiring your workers (“negligent hiring”) or in keeping them on after learning the worker poses a potential danger (“negligent retention”). This rule can apply even to what your workers do outside the scope of employment at your work place or during scheduled work hours.

Even if it seems unfair to the company, the legal system looks to make the victims whole when they are unfairly harmed.  In recent years, the courts have taken the position that (a) if the employer reaps the benefits of the employee’s work, they also need to be partner to any liability of the employee actions and (b) employees generally will not be able to compensate the victim, but employers are considered able.  These factors place a greater emphasis on the need to adequately drug test in the workplace.

Advice to Employers

  • Stay current with Federal, State, and local laws.
  • Safety should always be a primary concern, and a drug testing policy must reflect that mentality.
  • Adopt a thorough written policy, clearly delineating the circumstances under which you will perform non-discriminatory drug screenings in order to protect yourself.
  • Apply drug testing policies uniformly to all employees.
  • Although you can’t ask certain questions under Health Reporting Laws (HIPPA), a prescription holder can voluntarily share information about their prescription to protect their own interests, either before or after a drug test result.