Marijuana and the Workplace What are the (New) Rules

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The Adult Use Of Marijuana Act (Proposition 64) (the Act) provides that public and private employers are allowed to enact and enforce workplace policies pertaining to marijuana and are allowed to maintain a drug and alcohol-free workplace.

Proposition 64 provides that marijuana use is prohibited in public places, places where smoking or vaping is prohibited, as well as workplaces that maintain a drug-and alcohol-free environment. The Act expressly states that that it should not be construed or interpreted to:

  • restrict the rights and obligations of public and private employers to maintain a drug and alcohol-free workplace;
  • require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace;
  • 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 (especially a mandated drug-free workplace).
California Workplace Rules:
The legalization of recreational use of marijuana in California does not change the standard for employers in California — Employers may impose drug tests on employees, may refuse to hire prospective employees because of their cannabis use, and may terminate employees who use cannabis – even if the use is for medical purposes.
What About An Employee’s Right to Engage In Lawful Activity?

California Labor Code Section 98.6 prohibits employers from taking “adverse action” against an employee for lawful off-duty conduct. So this begs the question: If off-duty recreational use is  legal, wouldn’t an employee be protected from being fired because of their participation in this legal activity? The answer is: No.

The protections cited in the Labor Code have been generally interpreted to apply to lawful off-duty conduct related to political activity and expression, and not to protect marijuana use (which remains illegal under federal law). While the issue has not been specifically addressed, it is likely that a California court would conclude Labor Code Section 98.6 does not provide protection from adverse action, given that Prop 64 expressly provides that it is not intended to alter an employer’s rights to maintain existing drug-free workplace and testing policies.

Employers who wish to maintain such policies should ensure that their policies make clear that prohibited drug use extends to all drugs prohibited by federal law, including marijuana.
Medical Marijuana Use – Is this A Reasonable Accommodation?

If an applicant for employment or current employee tests positive for cannabis or any of its components, and asserts they use medical marijuana and have a prescription, do you have to accept this as a reasonable accommodation?

No — currently, under state law, employers do not have any obligation to accommodate cannabis use due to a disability-related reason. Federal laws, including the Americans with Disabilities Act and the Family Medical Leave Act, also do not protect marijuana use in the workplace.

Drug Testing – Nothing New Here

Nothing has changed with regard to under what circumstances an employer may conduct a drug screen. Generally speaking, applicants can only be tested after a conditional offer has been made. Current employee drug testing is limited to “reasonable suspicion testing”. Random drug testing of current employees is, for the most part, prohibited. There are exceptions for certain safety-sensitive positions (DOT drivers) and positions covered by regulations that require more frequent drug testing and/or drug testing based on certain circumstances (e.g. post-accident testing).

Next Steps

Employers should review their current Drug & Alcohol policies to ensure that the prohibitions include the consumption of, or being under the influence of, any form of cannabis while at work, while performing any duties for the company or during working hours.   The policies should clearly state when drug testing will be conducted and the consequences for a positive rest result.