By Jeffrey Daitz and Jacqueline Voronov, Hall Booth Smith on behalf of Arthur J. Gallagher Insurance, Risk Management and Consulting company- an approved and preferred insurance provider of LeadingAge California Members
Although cannabis remains a federally illegal substance, in many states across the country, including California, marijuana is legal for medical purposes and recreational use. This legal contradiction creates a challenge for employers who require drug testing either as part of the employee on-boarding process or periodically. Recent court cases have left employers defending against discrimination charges for taking action against employees who fail drug tests on account of their off-duty use of cannabis for medical reasons. As states continue to liberalize marijuana use, this rapidly evolving legal landscape presents new challenges for employers, particularly those with offices and employees in several states.
Right to a Drug-Free Workplace
Just because it is legal to smoke marijuana, does not mean it cannot be restricted. In fact, there seems to be a growing misconception, especially among employees in states where marijuana has been legalized, that the law permits marijuana use anytime and anywhere, thereby making workplace drug policies unenforceable. However, this is absolutely not the case. In fact, under virtually every state law that has legalized marijuana use, employers have an explicit right to prohibit their employees from using or being under the influence of marijuana at work or during work hours.
Pre-Employment Drug Testing
Even though courts have historically sided with employers, organizations are growing more and more cautious about making hiring and firing decisions based on drug test results alone. As medical marijuana becomes more widely accepted, companies may want to consider revising their policies to include accommodations for use, especially as court rulings shift in favor of employees.
Best practices for a pre-employment drug testing policy should:
- Include a test that applies to all applicants in similar positions, and does not single out certain applicants based on protected characteristics (i.e., race or disability);
- Articulate drug-testing policies and procedures, including detailing what the penalties are for failing a drug test;
- State explicitly that the use of marijuana, whether recreationally or on the job, is strictly prohibited;
- Consider whether drug testing is necessary or appropriate for particular job positions- it may not make sense to test for marijuana use for positions that do not directly implicate public safety.
Testing Current Employees
When it comes to testing current employees, employers in California may require an employee to undergo a drug test as long as it is based on reasonable suspicion backed by objective and legally sound facts. Employers should take the time to train managers on how to identify reasonable suspicion and what to do if an employee is suspected of being under the influence of marijuana at work.
Random Drug Testing
Random drug testing of current employees is highly controversial. California courts have upheld random testing only for very safety-sensitive positions. There are also some federal authorities that require employers to establish a drug and alcohol testing program that includes random testing. Unless you are required to randomly test or have employees in very safety-sensitive positions, random drug testing is not advisable.
The Americans with Disabilities Act (“ADA”) prohibits employers from discriminating against employees on the basis of a disability. If an employee is having difficulty performing one or more essential functions of the employee’s job due to a disability, both California law and federal law require employers to engage in interactive discussions with the employee to determine if reasonable accommodations can be provided so the employee can perform the essential functions of the job.
While the ADA bars discrimination against individuals with disabilities for employment purposes, courts in many states have ruled that medical marijuana use is not a reasonable accommodation. In 2008 the California Supreme Court ruled that an employer may refuse to hire an applicant who tests positive for marijuana, even if the drug is legally prescribed for a disability. More recently, in 2012, the Ninth Circuit similarly held that the ADA does not offer job protection for medical marijuana users because marijuana is an illegal substance under federal law.
It’s High Time to Review Your Company Policies
Companies should pay serious attention to legal protections for employees’ medical marijuana use in light of recent pro-worker court rulings and should be mindful of the apparent growing support for medical marijuana protections in the workplace. Employers whose policies prohibit marijuana use should review their existing drug testing and drug-free workplace policies to ensure compliance with evolving state law. Because the legal landscape in this area changes frequently, it is important to make sure these policies are updated on a regular basis.