Can California Employers Still Test for Marijuana?

Recreational marijuana sales in California started in January, causing many employers in the state to re-evaluate their substance-abuse and drug-testing policies. But the rules governing marijuana and the workplace haven't really changed ... yet.

Employers should note that they don't have to tolerate on-the-job marijuana consumption or intoxication. They should think about recreational marijuana like alcohol, said Walter Stella, an attorney with Miller Law Group in San Francisco. He was speaking at the California State Council of the Society for Human Resource Management (CalSHRM) 2018 California State Legislative & HR Conference in Sacramento.

California provides a constitutional right to privacy—which restricts employers from monitoring off-duty conduct. Pre-employment drug testing, however, is generally permitted as long as it is conducted in a fair and consistent manner and administered to all applicants who are applying for a position within a specific job class, Stella said.

In the hiring process, employers are allowed to test for illegal drugs at the applicant stage—though it is unclear if marijuana is "illegal," since it is permitted under state law but remains illegal under federal law.

Stella noted that it is safer to administer pre-employment drug tests only after a conditional job offer has been made. After an offer has been made, employees can test for legal and illegal substances as part of a medical examination. 

[SHRM members-only HR Q&A: What laws should companies be aware of when implementing a drug testing program?]

After employees start working, they have a higher expectation of privacy—so drug testing should be further limited in most cases to suspicion-based inquiries. Random testing is highly restricted in the state and should be reserved for certain safety-sensitive positions.

Northern California employers must also pay attention to local laws that place additional limits on drug testing. For example, a San Francisco ordinance prohibits random testing altogether. Thus, employers shouldn't use random drug testing at all, unless the city's law is pre-empted by federal requirements (such as the Department of Transportation's random drug-testing rules for pilots and other transportation positions).

Medical Marijuana

"A high priority for California employers is the management of medical marijuana issues in the workplace," said Michael Nader, an attorney with Ogletree Deakins in Sacramento, in an interview with SHRM Online. "Marijuana remains a Schedule I drug that is illegal under federal law, and it is also well-established under California law that employers may rely on federal law in enforcing drug-free workplace policies."

But attitudes toward medical marijuana use are changing. Recently, a number of state laws, as well as courts in Massachusetts and other states, have said that employers can't discriminate against job applicants and employees based on their status as medical marijuana cardholders. Employers in those jurisdictions should engage in an interactive process to determine if a reasonable accommodation can be made in accordance with state disability laws.

"In California we like to be first, and we certainly don't like to be last," noted Michal Kalt, the government affairs director for CalSHRM, during a conference session. So the California legislature is attempting to catch up with what other states have already done.

A proposed law, AB 2069, would amend the Fair Employment and Housing Act (FEHA) to include anti-discrimination protections for medical marijuana users.

Perhaps more importantly, it would amend FEHA to include reasonable accommodation and interactive process obligations with regard to medical marijuana use; essentially it would treat medical marijuana use the same as lawful opioid use, said Kalt, who is an attorney with Wilson Turner Kosmo in San Diego.  

One accommodation might be to provide additional time off from work while using marijuana. On-the-job intoxication can still be prohibited—even in jurisdictions that require employers to engage in an interactive process with medical marijuana cardholders.

Employers may want to review their policies to ensure that the use or possession of marijuana, including medical marijuana, is expressly prohibited at the workplace, and train supervisors and employees accordingly, Nader said. "Additional efforts to ensure workplace safety should also be considered, especially for employers in industrial settings."

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