The New California Marijuana Law 2017

What does the legalization of recreational marijuana use mean for the employees of California? While the law legalizes the sale, distribution and use of marijuana, it also specifically allows employers to set their own policies regarding the use of marijuana at work. The California Supreme Court well before prop 64 held that even the medicinal use of marijuana could be restricted by employers. In part, this is because a federal law continues to categorize marijuana as a controlled substance.

Is the New California Marijuana Law Workable?

With the greater availability and legality of marijuana, it’s reasonable to predict that there will be more people at the workplace who will test positive for marijuana. Testing labs take urine samples to find traces of THC, the active marijuana ingredient. The frequency of use, the amount ingested, the potency of the weed, the body size and metabolism of the individual all determine the likelihood of finding unacceptable levels of THC [The “kick” ingredient.] Complicating matters is that the window of detection can range for each individual from 4 to 30 days. Bottom line: even a small amount of recreational use can subject an employee to discipline depending on the strictness of the company’s policies. But employees are not without recourse. They have privacy rights, as well as possible disability accommodation rights.

The basic rule of disability accommodation is that an employee in a drug recovery program and not actively abusing must be accommodated to allow attendance at a drug treatment program.  But employees beware.  If an employer cross examines you to determine if you’ve come into work high, answer with: “Are you trying to deter my use of disability accommodation?”  or “I understand your concern, but I think that crosses the line into my private life away from work.”

Of course, an employer can restrict the ingestion of mind altering substances at work.  The new marijuana law doesn’t change that.  Most have policies against use of alcohol during work hours. We also know managers will have wine or something stronger at extended lunches, and return to work slightly buzzed (or worse) and the employer tolerates this conduct.

The New California Marijuana Law and  Employer Drug Testing.

So you smoke a few on Sunday night and are tested on Monday morning.  The drug test detects recent marijuana use. Is this a privacy invasion? The question comes down to whether your use affects your ability to perform your job. That question is especially relevant if you operate heavy machinery or drive for a common carrier, for example. Bottom line: don’t expose yourself to detection. An occasional marijuana user will have detectable traces for about 4 days, while frequent users can be detected for up to 10 days after last use.  Legalized manufacture and sale will likely result in highly potent smaller quantities that will be detectable for longer periods.

Employers will have to make tough decisions. If the marijuana use escalates as anticipated, and if use is detectable within that 2 to 10-day window, the allowable trace elements may have to be increased over the current ceiling to avoid losing a major part of the workforce.

The New California Marijuana Law — Some Legal Limits on Employers.

A “zero tolerance” for marijuana use at work is undoubtedly going to be enforceable. That has certainly been the case for the use of alcohol whether the employee drank excessively or not. The employer has an obvious interest in maintaining safety and competency at work. But if an employee is not currently under the influence of drugs or alcohol, and is seeking active treatment, and if she seeks accommodations to continue those treatments, it may be a violation of the Americans with Disabilities Act [ADA] to terminate because of use likely occurring weeks earlier.

Privacy rights are also important. The California Constitution, unlike the federal Constitution, prohibits private privacy invasion by private employers and individuals. If marijuana use is conducted off site after work hours, and the use does not have a demonstrable effect upon work performance, the fact that a drug test is positive for use weeks earlier, for example, may be a violation of an employee’s private rights to legal offsite activities.

If an employee protests that a drug test positive for THC is an invasion of his privacy because the use does not affect his work, he may be protected from retaliation by the employer because he asserts his privacy right. This theory of wrongful termination is based on a fundamental public policy protecting constitutional privacy interest.

The reality is that many employers tolerate alcohol use both off hours and during work hours. If an employer now applies a double standard to marijuana, the employer opens itself to a charge of privacy invasion and possibly discrimination. The employer’s argument that marijuana use, per se, presents a particular danger unlike that presented by alcohol will be a difficult case to make.

The New California Marijuana Law:  A Cautionary Note for Lawyers.

Federal law still prohibits the growing, selling, and use of marijuana, even in small quantities.  A federal court decision extends this illegality to the medical use law in California.  Federal law pre-empts state law.  Lawyers for example, should use caution in advising clients that marijuana production and sale are now completely legal.  The State Bar organizations of several states have also disciplined lawyers who themselves used marijuana and claimed they were within their rights under state laws, for example, for medical marijuana use.  These state Bar Association’s nevertheless imposed discipline because of the federal prohibition.

Conclusion

The new California Marijuana Law will change the way employers employ and use drug testing results.  The new law does not alter the right of employers to set marijuana use policies if these policies have a reasonable relation to the employer’s business. Even “unreasonable” restrictions will be enforced if they do not run afoul of the ADA or the California Constitution’s protection of individual privacy rights for off-site, off-duty conduct.

 

 

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