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Maintaining a Drug-Free Workplace in a Cannabis State

Attorney: Mary Watson Fisher, Laurie E. Sherwood | Published 3.13.18

On January 1, 2018, California legalized the purchase of marijuana for recreational use. What impact, if any, does this new law have on the rights and obligations of California employers and their ability to maintain a drug-free workplace? The short answer is that employers may still prohibit marijuana use in the workplace. For now, an employer should also be able to terminate an employee for testing positive for marijuana use (whether recreational or medicinal) under the employer’s established drug-free workplace policy. However, the California Legislature is considering a proposed bill that could require an employer to accommodate an employee’s off-duty use of medical marijuana in some circumstances.

On November 8, 2016, California voters passed Proposition 64, also known as the Adult Use Marijuana Act (AUMA). This act allows adults who are 21 years or older to buy, from a licensed recreational marijuana dispensary, one ounce of marijuana per day or up to eight grams of cannabis concentrates found in marijuana edibles. Despite this new California law, it is illegal under federal law to sell or use recreational and medical marijuana.

The AUMA specifically states that it does not intend to affect or restrict the rights and obligations of employers to maintain a drug-free workplace. Further, the AUMA states that it does not intend to require an employer to permit or accommodate the use, consumption, possession, 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.

These provisions of the AUMA are consistent with a 2008 California Supreme Court ruling that an employer is not obligated to accommodate an employee’s use of medical marijuana. In that case, the employer’s drug-free workplace policy required employees to pass a pre-employment drug test as a condition of employment. The employer terminated an employee after he failed the pre-employment drug test due to the presence of THC (tetrahydrocannabinol, the principal psychoactive ingredient in marijuana) in his system. The employee sued, claiming he used marijuana during non-work hours at his doctor’s recommendation to alleviate chronic back pain and was not under the influence of marijuana while on the job. As such, he argued the employer was required by California law to accommodate his off-duty marijuana use, and the employer could not legally terminate his employment due to such use. The Court disagreed with the employee and ruled in favor of the employer, finding that nothing in the Compassionate Use Act governing medical marijuana required employers to accommodate marijuana use by their employees, including an employee using medical marijuana to treat a disability.

The California Legislature is currently considering a bill that would overturn the 2008 Supreme Court decision and require an employer to accommodate an employee’s off-duty use of medical marijuana under certain circumstances. The proposed bill does not require an employer to accommodate an employee’s use of recreational marijuana.

What Action Should Employers Take in Response to AUMA?
Employers should review and update their drug-free workplace policies to ensure that they specifically prohibit the use of recreational and medical marijuana in the workplace. If the employer requires employees to pass drug tests as a condition of employment and/or if employees are subject to random and/or post-accident (work-related) drug testing, the employer should update the policy to advise all employees and prospective employees of potential consequences of off-duty use of recreational and/or medical marijuana if an employee tests positive for THC at work. In addition, employers should update their disability policies to specify that the employer will not accommodate employees’ use of medical marijuana (understanding that the pending California legislation may change an employer’s future obligations to employees who use medical marijuana). Finally, employers need to ensure that they apply these policies consistently among all affected employees to avoid discrimination claims.