Seyfarth Synopsis: In a simpler time, courts reviewing medical cannabis laws issued employer-friendly decisions, generally finding no duty to accommodate medical cannabis even when state laws allowed its use for medical purposes. Now, however, the tide is rapidly turning. Where does California employment law currently stand on cannabis? Below we address burning issues regarding accommodations and drug testing.
What is the Current State of Cannabis in California?
At the federal level, cannabis continues to be a Schedule I controlled substance, meaning that its possession and use are crimes. But California has enacted medical and recreational cannabis laws that eliminate any crimes at the state level. The Compassionate Use Act (“CUA”), enacted in 1996, protects people using medical cannabis from criminal prosecution by the state. In November 2016, California residents voted in favor of recreational use under Proposition 64, which allows adults 21 years and older to possess up to 28.5 grams of cannabis and 8 grams of concentrated cannabis, and to grow up to 6 cannabis plants at home in a locked area not visible from a public place.
Do California Employers Have a Duty to Accommodate Medical Cannabis Use?
Not yet, but continue to tune in. The California Supreme Court’s 2008 opinion in Ross v. RagingWire Telecommunications held that employers need not accommodate an employee’s medicinal cannabis use, irrespective of the CUA. Ross reasoned that the CUA does not grant cannabis the same status as a legal prescription drug. Because cannabis remains illegal under federal law, it cannot be “completely legalize[d] for medical purposes.”
Though it stalled in committee, a 2018 bill in the California Legislature would have required employers to accommodate employees’ use of medical cannabis use. But since the California Fair Employment and Housing Act does not currently require employers to accommodate illegal drug use, an employer can still lawfully fire an employee for smoking up.
Also, employers must remember the obligation to engage in an interactive process and reasonably accommodate applicants and employees with qualifying disabilities. Thus, for example, if an employee discloses use of medical cannabis to treat depression and a sleep disorder, an employer must discuss potential accommodations for the underlying conditions with the employee. Also pertinent is the California law requiring employers with 25 or more employees to reasonably accommodate alcohol and drug rehabilitation. Thus, even if an employee claims to be a medical cannabis user or even a former recreational cannabis user, employers must tread carefully to avoid getting lost in the weeds.
If Cannabis is Legal for Recreational Use, Can Employers Still Test for It?
Yes. Proposition 64 explicitly does not require employers “to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace,” and it does not limit an employer’s ability to “have policies prohibiting the use of marijuana by employees and prospective employees.” For the time being, employers remain within their rights to maintain drug-free-workplaces and can test for use of cannabis.
What Other Drug Tests are Permissible in California?
Pre-employment and reasonable suspicion drug tests are generally permitted in California. As we’ve previously noted, unless the employee works in a safety- or security-sensitive position, suspicionless drug tests (e.g., random, pre-placement or pre-assignment tests) are very risky.
To further complicate matters for California employers, San Francisco has a drug-testing ordinance that generally prohibits random or company-wide testing of current employees’ blood or urine. And if a San Francisco employer intends to require urine or blood testing on the basis of a reasonable suspicion of drug use, the employer must have reasonable grounds to believe that an employee’s faculties are impaired on the job and that the employee is in a position where the impairment presents a clear and present danger to the physical safety of the employee or others.
Are Employees Entitled to Notice Before a Drug Test?
An employer that plans to drug test should distribute a clear drug policy ahead of time. The policy should explicitly prohibit all illegal drug use rather than drug use that occurs while working or on the employer’s premises. This is especially important because drug testing programs often cannot tell the employer when the employee actually ingested the drug. The policy also should notify employees of the circumstances in which a drug test would occur, the consequences for a positive test result or a refusal to cooperate, and resources available for employees who would like to seek treatment for substance abuse issues. In addition, applicants and employees must sign a specific form that authorizes the laboratory to release the drug test results to the employer and its Medical Review Officer.
Can Employers Test for Other Drugs, But Exclude Cannabis?
Unless an employer is subject to a federal or state law or regulation that requires it to test for cannabis (e.g., Department of Transportation regulations), employers can choose to eliminate cannabis from their drug testing program. To minimize negligent hiring, retention, or supervision claims, however, employers should first consider the risks of not testing and the nature of the position at issue to ensure the protection of employees and the public.
Takeaways for Employers
While California employers currently need not permit employee cannabis use (because it is illegal under federal law), employers should review their handbooks and written policies to ensure that their drug policies are broad enough to prohibit it. Employers should also communicate their anti-drug and drug testing policies clearly to employees to weed out any confusion caused by the legalization of cannabis in California.
Seyfarth’s Workplace Solutions Group is ready and willing to help to make sure your company is in compliance.
Edited By: Elizabeth Levy