As the legal landscape around cannabis changes, employers are increasingly confronted with the question of how to deal with cannabis in the workplace. In California, where recreational cannabis is now legal, employers are grappling with issues like whether to allow employees to use cannabis during work hours, how to test for cannabis use, and what accommodations to make for employees who use medical cannabis.
The Orange County Business Council has released a set of guidelines for employers dealing with cannabis in the workplace. The guidelines recommend that employers develop policies around cannabis use that are consistent with their other policies on substance use. They also suggest that employers consider drug testing options and accommodations for employees who use medical cannabis.
Whether or not to allow cannabis use in the workplace is a decision that every employer will have to make for themselves. However, the Orange County Business Council’s guidelines provide a good starting point for employers who are trying to navigate this new landscape.
Allow or Prohibit the Use of Cannabis
Legal cannabis use and its impact on employee hiring, retention, and productivity is a concern of many employers in Orange County, California. A policy should be put in place by employers to protect their business while still accommodating employees.
Cannabis use can impair an individual’s ability to perform safety-sensitive tasks. For this reason, employers should consider prohibiting cannabis use during work hours or while performing safety-sensitive tasks. If cannabis use is allowed during work hours, employers should have a clear policy that sets expectations for employee behavior.
Employers should also consider drug testing options and accommodations for employees who use medical cannabis. Drug testing can be used to identify employees who are using cannabis during work hours or while performing safety-sensitive tasks. Accommodations may need to be made for employees who use medical cannabis, such as allowing them to take breaks to consume cannabis or providing them with a designated area to consume cannabis.
Drug Testing – What Employers Can and Can’t Do
Drug testing can be done for a variety of reasons. Some companies test randomly; some only when there’s reasonable suspicion that a person is under the influence; and some after accidents, since many insurance companies require post-accident testing. Employers in Orange County can drug test their employees for cannabis. However, there are some restrictions on how drug testing can be conducted.
First, employers cannot require employees to take a drug test as a condition of employment. Drug testing must be conducted after an offer of employment has been made.
Second, employers can only drug test employees who they have a reasonable suspicion to believe are using drugs. This means that employers cannot implement blanket drug testing policies for all employees.
Third, employers must provide employees with notice that they may be subject to drug testing. Employees must also be allowed to decline the drug test or explain any positive results.
Finally, employers must use a certified laboratory for drug testing and follow all state and federal laws regarding the confidentiality of employee drug test results.
The Orange County Business Council’s guidelines recommend that employers develop policies around cannabis use that are consistent with their other policies on substance use. They also suggest that employers consider drug testing options and accommodations for employees who use medical cannabis.
Can California Employers Maintain Drug-Free Policies?
The California Supreme Court says yes. In Ross v. Ragingwire Telecommunications, Inc. (2008) 42 C3d 920, the court ruled that an employer may require applicants and employees to pass a drug test for marijuana as a condition of employment, even though medical marijuana use is legal in California.
The court reasoned that because marijuana remains illegal under federal law, employers are not required to accommodate its use, even for medical purposes. Therefore, an employer who has a policy prohibiting the use of all illegal drugs is within his or her rights to enforce that policy against employees who use marijuana, regardless of whether they have a doctor’s recommendation to do so.
What Does This Mean for Employers in Orange County?
If you have a drug-free workplace policy, you can continue to enforce it against employees who use marijuana, even if they have a doctor’s recommendation to do so. However, you may want to consider making an exception for employees who use medical marijuana in compliance with California’s Compassionate Use Act of 1996 (CUA).
The CUA allows patients with a doctor’s recommendation to use marijuana for medical purposes. However, the law does not require employers to accommodate employees who use medical marijuana. Therefore, if you have a policy prohibiting the use of all illegal drugs, you can still enforce that policy against employees who use marijuana for medical purposes.
However, some employers choose to make an exception for employees who use medical marijuana in compliance with the CUA. If you decide to do this, you should have a written policy that spells out how and under what circumstances employees can use medical marijuana without being disciplined.
Some things to consider when developing such a policy:
- Whether employees will be allowed to use medical marijuana at work or only during non-work hours;
- How much marijuana employees will be allowed to possess at work;
- Whether employees will be required to submit to random drug testing;
- What types of discipline will be imposed on employees who violate the policy?
Keep in mind that even if you have a policy accommodating the use of medical marijuana, you can still discipline employees who use marijuana at work or who are impaired by it while on the job.
If you have any questions about how to develop a policy concerning cannabis in the workplace, or if you need help enforcing your existing policy, contact an experienced Orange County employment law attorney for assistance.
AB 2188 would amend the California Fair Employment and Housing Act to make it an unlawful practice for an employer to refuse to hire a person or discharge, expel, or otherwise discriminate against a person in terms, conditions, or privileges of employment because of the person’s status as a qualified patient or primary caregiver under the Compassionate Use Act of 1996.
The bill would make it an unlawful practice for an employer to require that an employee or applicant refrain from using medical cannabis outside of the workplace.
AB 2188 would authorize an aggrieved employee or applicant to assert a claim under FEHA and would provide for injunctive and declaratory relief, damages, reasonable attorney’s fees and costs, and such other remedies as may be appropriate. But the bill would not preempt any state or federal law that requires testing for controlled substances. As for the likelihood of the bill’s passage, it may be too early to say.