Now that California has legalized marijuana for recreational use, there is a high probability that the number of Californians who use marijuana have amplified since January 1, 2018. Currently, only 4.3% of those Californians are unemployed. There is no doubt this new legislation affects the composition of the workforce while generating problematic concerns for employers in California.
What does this mean for employers’ liability? How does this affect their ability to enforce their drug policies and testing protocols?
The Good News: Although marijuana is legal, much like alcohol, employers can still prohibit its use in the workplace. Regardless of whether it’s legal, an employee under the influence of any substance can cause impairment and create a safety hazard for themselves, their co-workers, vendors, and customers. Because employers still have the strict obligation to maintain a safe working environment; rest assured, they can continue to enforce drug-free workplace policies.
Additionally, as the law is currently written, there is no requirement for employers to provide reasonable accommodations for marijuana users, for both medicinal and recreational purposes. This should provide some anxiety relief to employers in California.
Businesses should examine their current drug and alcohol policy to make sure that at a minimum it:
- Prohibits employees from being under the influence while at work
- Forbids the use, sale, possession, distribution or manufacturing of drugs and paraphernalia at work
- Upon reasonable suspicion, reserves the right to conduct workspace searches
- Complies with all applicable federal and state laws
The Bad News: Under reasonable suspicion, employers will continue to be able to test their employees for impairment. Unfortunately, there is a lack of methodologies for judging the impairment of marijuana. Clinically, no drug test exists for marijuana inebriation. The current tests can only show marijuana in the system, however, this could be from usage days prior. A positive drug test may not be solid evidence of whether an employee is impaired on the job. This poses a serious problem for employers who want to take disciplinary action against an employee that is suspected to be impaired while working. Before taking any definitive steps, employers should seek counsel to avoid potential legal backlash.
Here are some Essentials to remember:
- Employers are currently not required to make accommodations for marijuana use (medical or recreational) and can still enforce a drug-free workplace policy.
- Whatever your policy, be consistent when testing and disciplining.
- Train your supervisors on how to spot problematic situations and what the procedures are for handling the suspected impairment.
- Consult your HR Consultant and/or legal counsel before taking disciplinary action against an employee