Do I have to change my drug-free workplace policy now that marijuana is legal?
On January 1, 2018, recreational marijuana became legal in California. That raises a few questions, to put it mildly. For California employers and employees, one of the first questions is, must employers change their drug-free workplace policies now that cannabis use is legal?
Generally speaking, the answer is no. A California employer can still keep its drug-free workplace policy (as long as it was legally compliant before January 1) that prohibits the use of alcohol and drugs, including cannabis, in the workplace. There is even a California Health and Safety Code statute protecting employers: The legalization of cannabis use “does not amend, repeal, affect, restrict, or preempt…[t]he rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of cannabis in the workplace, or affect the ability of employers to have policies prohibiting the use of cannabis by employees and prospective employees, or prevent employers from complying with state or federal law.”
Does this mean I can terminate an employee who tests positive for cannabis?
Yes, if you have a zero-tolerance policy that provides for dismissal of employees who test positive for drugs. An employer can keep its drug-free workplace policy and test employees for alcohol and drugs, including cannabis, in compliance with the law. That means that an employer can refuse to hire an employee who tests positive for cannabis. It also means that an employer can ask an employee to take a drug test when the employer reasonably suspects the employee is under the influence of any substances prohibited under the employer’s policy. An employer can terminate an employee who refuses to take the test, or who tests positive for those prohibited substances, including cannabis.
What if the employee is using marijuana to treat a disability?
With all the medical leave and disability discrimination laws protecting employees with certain medical conditions, employers are also understandably nervous about terminating an employee who relies on medical marijuana. For now, employers can rest easy. Because federal law still prohibits cannabis use, both state and federal law refuse to protect the employee’s illegal drug use, even if the employee is using medical marijuana, with a prescription, to treat a medical condition.
Of course, cannabis law is quickly evolving. From legalizing marijuana at the state level in parts of the country, to rescinding “hands-off policies” at the federal level that were intended to leave states to decide on the cannabis issue on their own, cannabis laws are subject to change. Employers should keep a close eye on the interaction between federal and state laws on cannabis use, and be prepared to modify their drug policies as needed.
Conkle, Kremer & Engel attorneys are experienced with counseling employers who face a constantly changing landscape of laws, ordinances, and regulations, and resolving employment issues as they arise.