On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
ARE POT LAWS DRIVING EMPLOYERS TO DRINK?
Current California Marijuana Laws and the Workplace
In November, 2016, California adopted Proposition 64, the Adult Use of Marijuana Act. This statute legalized the use of marijuana in California by those over the age of 21.
This law, combined with numerous other laws requiring employers to “reasonably accommodate” employees with disabilities have left employers scratching their heads in confusion about what, if anything, can be done to address the increasingly serious problem of drug use, specifically including marijuana use, in the workplace.
The Good News
Proposition 64, which had the effect of decriminalizing the use of marijuana in California, does not restrict the ability of employers to discipline employees for marijuana-related offenses at work, provided they have carefully-drafted policies in place.
Proposition 64 expressly provides that it does not restrict an employer’s right “to maintain a drug-free workplace…or 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” which prohibit drug use.
Consequently, nothing in Proposition 64 prevents employers from excluding from consideration applicants who test positive for marijuana, or to discipline employees who possess, use marijuana, or test positive for marijuana use.
Importantly, Proposition 64 does not affect the application of federal law, which continues to prohibit the possession and use of marijuana. Nor does it alter the right of employers to maintain a drug-free workplace. Just as the fact that alcohol use is legal does not preclude employers from banning its use in the workplace, the legalization of marijuana under California law does not restrict the ability of employers to enforce drug-free workplace policies.
Specifically, Proposition 64 expressly states that it does not limit “the rights and obligations of public and private employers to maintain a drug and alcohol-free workplace.”
Testing: Applicants vs. Existing Employees
California law generally allows employers to require drug tests for applicants as a condition of employment. However, it severely restricts the right of most employers to require existing employees to submit to drug tests. Proposition 64 does not alter existing law as it pertains to drug testing. It is recommended that employers refrain from requiring existing employees to submit to drug tests without consulting with labor law counsel before doing so.
As a general rule, employers cannot require existing employees to submit to random drug or alcohol tests, unless Department of Transportation regulations mandate that they do so.
Proposition 64 does not require employers to accommodate employees’ use of marijuana for medical purposes. The statute specifically addresses the question of “accommodation,” by providing that it does not create an obligation “to permit or accommodate the use…of marijuana in the workplace.” Accordingly, the California Supreme Court’s holding in Ross v. RagingWire Telecommunications, to the effect that employers can lawfully refuse to employ persons who use marijuana for medical purposes, remains good law.
Jumping to Conclusions
Drug use and drug testing cases are among the most frequently-litigated workplace disputes. These often occur in the context of wrongful termination or privacy rights cases, where employees allege that they were fired for drug use or possession-related offenses. In these cases, employees often argue that a drug test was unlawfully coerced or conducted. If they succeed, the evidence of impairment produced by an unlawfully-conducted drug test will often be excluded from evidence, leaving the employer without any proof to justify an employee’s termination, for example.
On this subject, it is important to note that the rules governing workplace drug testing are analogous to the Fourth Amendment search and seizure requirements which apply to other kinds of workplace searches conducted for the purpose of discovering illegal contraband.
To overcome this problem, it is imperative that employers develop and distribute carefully-drafted, written policies which maximize the right to control the use of drugs, including marijuana, in the workplace. To this end, comprehensive substance abuse and drug-testing policies are indispensable.
As part of this process, it is recommended that other policies designed to facilitate the ability of employers to effectively address the growing problem of workplace drug use be developed and distributed as well. These include mandatory arbitration and workplace privacy policies, among several others.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over three decades. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives.
While no one can guarantee a future free of lawsuits, Putnam has compiled a remarkable record of success: Not one employer-client has been sued in 36 years with his system of precautions in place.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. http://www.jaygputnam.com/blog/