Seyfarth Synopsis: California employers racing to ensure all their employees receive mandatory harassment training by the end of the year can now take their foot off the gas. In response to an outcry from employer groups regarding the challenge of compliance at breakneck speed, the Legislature and Governor Newsom have extended the new training deadline for a year.

Faithful readers of this blog will recall that the 2018 legislation bringing us many other harassment-related provisions (SB 1343) greatly expanded sexual harassment training requirements (described here). Starting in 2019, under SB 1343, employers of as few as five people (down from fifty employees under the prior law) must provide two hours of interactive training to their supervisors. In addition, all such employers must now provide one hour of interactive training to all non-supervisory employees. SB 1343 served to greatly increase the number of employers covered and the volume of trainings required, and it set deadlines for the training. Employers around the state had geared up, started their engines, and raced to meet this aggressive deadline.

Then Governor Newsom waved a yellow flag. In his first lap around the bill-signing track, he tapped the brakes right before Labor Day by signing Senate Bill 778, no doubt to cheers and popped bottles of milk from employers across the state. SB 778—effective immediately upon the Governor’s August 30, 2019 signature—extends the deadline for non-supervisory employee training from January 1, 2020 until January 1, 2021. SB 778 also clears up confusion regarding the deadline to train supervisors trained under prior legal training requirements, since one interpretation of SB 1343 would have required supervisors trained in 2018 to be re-trained prior to the end of 2019. SB 778 now confirms that those supervisors who received 2018 training need not be trained again until 2020, so employers can go back to following their normal pace cars on existing supervisor training.

The training requirements for newly hired supervisory employees have not been changed in SB 778, and employers still must train new hires within six months of starting a supervisory position.

Workplace Solutions:

This welcome delay in the training deadline is no excuse to fall asleep at the wheel. Make a pit stop with your favorite Seyfarth advisor to determine the best way to ensure compliance before the new deadline catches you from behind.

Edited by Coby Turner

Seyfarth Synopsis: The hotly contested AB 5 was put on hold, but is widely expected to be revived before the end of the legislative session.

On August 13, 2019, the California Senate Appropriations Committee held a short hearing on Assembly Bill 5. AB 5, if enacted into law, would codify the “ABC Test” for employee status adopted in the California Supreme Court’s 2018 Dynamex v. Superior Court decision, and would thus further hinder the efforts of businesses to use independent contractors. While there was little substantive discussion of the bill, the hearing culminated in a potentially significant result.

The Senate Appropriations Committee referred AB 5 to the “suspense file,” because of if its significant fiscal impact. This action places a hold on the bill unless the Chair of the Appropriations Committee decides to return the bill to the Committee. Referral to the suspense file, in effect, functions as a veto if a bill is not returned to the Committee.

While this kind of action is often the death knell for many bills, the significant support for this bill from many legislators, including its influential author, Lorena Gonzalez Fletcher (D-San Diego), Chair of the Assembly Appropriations Committee, enhances the bill’s chances of being returned from suspense and continuing through the legislative process.

In fact, the Senate President pro tem, Toni Atkins (D-San Diego) fully expects AB 5 to move forward. And Atkins, much to the chagrin of gig economy companies, expressed skepticism that the bill eventually signed into law would contain a provision specifically addressing the status of gig workers, as negotiations between business and labor interests appear primed to continue into the next legislative session, stating in an interview with CapRadio’s Ben Adler “I have no doubt that we will discuss this into the next year.”

With that said, AB 5 will need to make it through the legislative process by the September 13th close of the legislative session, and must then be submitted to the Governor for his approval or veto by October 13th, lest it remain in suspense-file purgatory.

Workplace Solutions

Companies utilizing contractors should continue to keep a close eye on this legislation and how it may affect their current operations, as it has gone through a number of changes from its initial proposed form. Seyfarth will keep you apprised as the legislative session continues—stay tuned!

Edited by Coby Turner

Seyfarth Synopsis: A new set of proposed regulations requires all janitorial employees and their supervisors to receive two hours of in-person, interactive sexual harassment training every two years.

The Property Service Workers Protection Act of 2016 requires employers with at least one janitorial worker (including front line cleaners) to provide biennial sexual violence and harassment prevention training to janitorial employees and their supervisors. The law states that as of January 1, 2020, this training must be completed in order for these employers to register or renew their business with the Division of Labor Standards Enforcement (DLSE). But there’s a catch: janitorial employers have been left in the dark as to exactly what these training regulations will entail while the DLSE irons out the details.

The DLSE’s proposed regulations require:

  • In-person, interactive training. The regulations expressly forbid webinars, e-learning training, and the like as the sole method for providing this training. The training must be designed to encourage participants to apply the lessons learned regarding sexual violence and harassment to their particular work environment. For new employees, this in-person training must occur within the first six months of employment.
  • Two hour duration. Even janitorial employees with no supervisory responsibilities must take two hours of training, a departure from the one-hour requirement for nonsupervisory employees set forth in Government Code section 12950.1. Nevertheless, the training can be broken up into hourly increments.
  • Resources for sexual violence and harassment victims. In addition to the harassment training content required under Government Code section 12950.1 and related regulations, the training must identify local, state, and national resources for victims of unlawful sexual violence and harassment. In particular, community-based resources, such as rape crisis centers, should be identified.
  • Training to be provided in attendee’s language. The in-person training must be provided in a language understood by the attending janitorial employees and their supervisors. All written materials must be at their literacy level as well.
  • Written record of completed training. Employers must keep training records for three years. Employers must retain—and give the DLSE upon request—the names of the attendees and the trainer, a copy of all written materials, sign in sheets, and certificates of attendance.

Although the DLSE’s official training protocols were to be finalized no later than January 1, 2019, the comment period was extended. To date, the DLSE has not issued final regulations.

Meanwhile, pending legislation (AB 547) has passed the Assembly and is currently before the Senate. If passed, this bill could make the training requirements even more onerous. AB 547 would require employers to use qualified organizations to provide the mandated training, and would require lodging a report with the DLSE within 48 hours of the training. If this bill becomes law, the DLSE would have to develop and maintain a list of these qualified organizations (as well as peer trainers within these organizations).

Workplace Solutions

What should employers with one or more janitorial employees do until the DLSE straightens out the training requirements? For now, the Department of Industrial Relations advises that employers can meet their current obligations by giving their janitorial employees and their supervisors copies of the Department of Fair Employment and Housing (DFEH) pamphlet DFEH-185, “Sexual Harassment.” But employers will need to be prepared to implement the new regulations once they are finalized.

If you have questions about how to clean up your current training regimen, Seyfarth’s Workplace Solutions Group can help.

Edited by Elizabeth Levy

Seyfarth Synopsis: Cal/OSHA’s new emergency regulation for workers exposed to wildfire smoke creates new obligations for many employers.

An emergency regulation on Protection from Wildfire Smoke applies to outdoor workers and to workers in semi-indoor places. Examples include day laborers, agricultural workers, landscapers, construction workers, and sanitation workers. Requirements (described below) kick in when the current Air Quality Index (AQI) for airborne particulate matter (PM 2.5) is 151 or greater, and where employers should reasonably anticipate that employees could be exposed to wildfire smoke.

Employers covered by the emergency regulation must take the following steps to protect workers who may be exposed to wildfire smoke:

  • Identify harmful exposure to airborne particulate matter from wildfire smoke at the start of each shift and periodically thereafter by checking the AQI for PM 2.5 in regions where workers are located.
  • Reduce harmful exposure to wildfire smoke if feasible by, for example, relocating work to an enclosed building with filtered air, or to an outdoor location where the AQI for PM 2.5 is 150 or lower.
  • If employers cannot reduce workers’ harmful exposure to wildfire smoke so that the AQI for PM 2.5 is 150 or lower, they must provide:
  1. Respirators such as N95 masks to all employees for voluntary use, and
  2. Training on the new regulation, the health effects of wildfire smoke, and the safe use and maintenance of respirators.

The regulation will be effective through January 28, 2020, with two possible 90-day extensions. Cal/OSHA plans to convene an advisory committee in Oakland on August 27 to establish a permanent regulation using the regular rulemaking process. Meeting details and documents are posted on Cal/OSHA’s website.

For more information on this or any related topic, please contact the authors, your favorite Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Health (OSHA/MSHA) Team.

Seyfarth Synopsis: The great California patchwork of minimum wage ordinances might have employers feeling full of matatas, but no worries! Seyfarth is here to explain the circle of life of these laws so that even the slowest hyena could follow.

More Food For The Whole Flock

As of July 1, 2019, many California counties and municipalities have upped the ante with ordinances that increase local minimum wage rates. Some municipalities prescribe different rate increases depending on the number of employees in the herd, while others specify that hotel and government assisted workers receive special treatment. Even the most studious of lions may have trouble mastering the different local herds’ pay, but the chart below is a handy cheat sheet to help guide the way.

Jurisdiction

Pre-July 1, 2019 Minimum Wage

Post-July 1, 2019 Minimum Wage Hike

Alameda $11 for small employers and $12 for large employers $13.50 for all employers
Berkeley $15 $15.59
City of Los Angeles – for fewer than 26 employees $12 $13.25
City of Los Angeles – for more than 25 employees $13.25 $14.25
City of Los Angeles – hotel workers exclusively $16.10 $16.63
County of Los Angeles Unincorporated – fewer than 26 employees $12 $13.25
County of Los Angeles Unincorporated – for more than 25 employees $13.25 $14.25
Emeryville – fewer than 56 employees $15 $16.30
Emeryville – more than 55 employees $15.69 $16.30
Fremont $12 $13.50
Long Beach $14.64 $14.97
Malibu – fewer than 26 employees $12 $13.25
Malibu – more than 25 employees $13.25 $14.25
Milpitas $13.50 $15
Oakland – hotel workers without benefits exclusively $13.80 $20
Oakland – hotel workers with benefits $13.80 $15
Pasadena – fewer than 26 employees $12 $13.25
Pasadena – more than 25 employees $13.25 $14.25
San Diego* $12 $12 (no change)
San Francisco $15 $15.59
San Francisco – government supported employees exclusively $13.27 $13.79
San Francisco – non-Profit Employers** $15 16.50
San Francisco – for-Profit Employers** $15 $17.66
San Francisco – Public Entities** (If the city appropriates funds for the increase in the budget) $16 $16.50
San Leandro $13 $14
Santa Monica – fewer than 26 employees $12 $13.25
Santa Monica – more than 25 employees $13 $14.25
Santa Monica – hotel workers exclusively $16.10 $16.63

*San Diego did not have a minimum wage increase scheduled for July 1, 2019

**SFO airport tenants, subtenants and their subcontractors, contractors and subcontractors providing services to city and county of San Francisco, and public entities within the city and county who have city contracts must follow San Francisco’s Minimum Compensation Ordinance. The MCO includes 12 paid days off per year (or cash equivalent) and 10 days off per year without pay.

What’s more, as of July 18, 2019, the U.S. House passed a $15 per hour minimum wage, which would raise the federal hourly rate from the current $7.25. However, the bill is unlikely to pass in the current Senate. Either way, keep your ears perked for future news on this development, since it’s important to always look where you’re headed rather than where you were!

Workplace Solutions: For help troubleshooting specific ordinance questions (including navigating the various posting and notification requirements of the specific local ordinances) or help reaching Hakuna Matata, contact your favorite Seyfarth attorney. Or Timon and Pumbaa. Until then, Long Live the King!

Edited by Coby Turner and Elizabeth Levy

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Seyfarth Synopsis: As the mercury rises, California employers must comply with regulatory requirements to keep their employees cool.  Employers should be aware of Cal/OSHA’s existing requirements for outdoor workplaces and proposed rules which could turn up the heat on indoor employers.

California Keeps It Cool

For many years, Cal/OSHA has distinguished itself from Federal OSHA by, among other things, requiring all California employers with outdoor work areas to take steps to prevent heat illness.  For example, employers with outdoor work areas must train all employees about heat illness protection and keep their employees well hydrated.  Employers must also provide shady areas for five minute cool-down breaks when employees feel the heat.  (These breaks are on the clock and separate from rest breaks employers need to provide under the Labor Code).  Finally, employers must develop and implement written procedures for complying with the heat illness regulatory requirements. The regulation is contained in 8 CCR 3395.

Proposed Rules May Put Indoor Employers in the Hot Seat

Now, Cal/OSHA has a proposed an indoor heat illness standard that’s making its way through the rule-making process. The final draft of these proposed rules would impose a number of requirements when it’s a good day to head to the beach—and indoor temperatures equal or exceed 82 degrees Fahrenheit.

For indoor work areas that can’t beat the heat, employers would need to provide:

  • Cool-down areas that are blocked from direct sunlight and radiant heat sources (e.g. the sun, a fire pit, or an overzealous espresso machine) and that are either open-air or ventilated. Employees would need to have access to cool-down areas at all times and employers would be required to encourage employees to take breaks to chill out.
  • Drinking water.
  • Emergency response procedures.
  • Close observation of employees under certain circumstances.
  • Training on heat illness related topics.
  • A written heat illness prevention plan.

Additional requirements would apply to employers that have employees working under hotter conditions, namely: if employees wear clothes that restrict heat removal (like waterproof or biohazard gear), employees work in or near radiant heat, or the thermostat hits 87 degrees.  In these cases, employers would need to:

  • Keep records of temperatures and evaluate environmental risk factors for heat.
  • Use engineering control measures (e.g. air conditioning) to minimize the risk of heat illness. If the temperature cannot be reduced to 87 degrees F (or 82 degrees F in some cases), employers would need to implement administrative controls and provide personal heat protective equipment.

Workplace Solutions: As summer heats up, employers must comply with existing California heat regulations.  Seyfarth’s Workplace Safety and Health Group can help you check the forecast for future regulations.

 

Edited by: Elizabeth Levy

Seyfarth Synopsis: While employees often will toot their own horn, employers sometimes may have concerns about their ability to safely perform their job. If this situation rings a bell, it will be music to your ears to hear that it may be possible to request employees to undergo a medical examination to certify their fitness for duty.

Fitness for duty examinations are permitted under both the federal Americans with Disabilities  Act (ADA) and the California Fair Employment and Housing Act (FEHA). However, because employers are generally prohibited from inquiring about employees’ physical and mental conditions, employers must exercise caution and should not march to the beat of a different drum.

What if I don’t think an employee is ready to return from leave?

Under the Family and Medical Leave Act (FMLA), when an employee’s physician certifies that  the employee can return to work from leave, the employer must return the employee to work. However, if the certification is incomplete or insufficient, the employer can give the employee a written notice stating what additional information is necessary.

Alternatively, as discussed by the California Court of Appeal in White v. County of Los Angeles, once the employee has returned to work from FMLA-protected leave, an employer can request an examination consistent with the ADA.

Under California’s FEHA, an employer may require an employee to undergo a medical examination to certify an employee’s fitness for duty upon the employee’s return from a non-FMLA medical leave of absence if there are reasonable safety concerns regarding the employee’s ability to perform the essential job functions. The examination must be job-related and a business necessity under the specific circumstances.

Can I require a fitness for duty examination when there are safety concerns?

An employer may require an employee to submit to a medical examination and obtain a fitness for duty certification if the employer has a reasonable belief based on objective evidence that the employee’s ability to perform essential job functions will be impaired by a medical condition, or that the employee will pose a direct threat due to a medical condition. If a medical examination and fitness for duty certification is sought under those circumstances, the examination must be job-related and consistent with business necessity.

Employers must have a “genuine reason to doubt” an employee’s ability to perform job-related functions. So, when considering a fitness for duty examination, it is instrumental to have evidence to drum up support for your reason to doubt the employee’s fitness. Excessive absenteeism, difficulty performing essential functions of the job, or poor productivity (particularly where outside of the employee’s usual patterns or character) may all be “cymbal-ic” of an employee being “unfit for duty.” These situations are highly fact specific and employers will have to play it by ear to see if a fitness for duty examination is appropriate in a particular circumstance.

What can a fitness for duty examination tell me?

Under California’s Confidentiality of Medical Information Act (CMIA), unless the employee provides written authorization, an employer can only know whether the employee is able to perform the essential functions of the job. In other words, the employer cannot be told the diagnosis or cause of an employee’s inability to perform—it is simply a pass/fail examination. However, if an employee would be able to perform the essential functions of the job with a reasonable accommodation, the employer is entitled to know the medical restrictions of the employee’s fitness for duty, such as lifting or standing restrictions, or needing an alternative schedule. Of course, if there is any doubt as to the accommodations needed, an employer can request that the employee provide additional clarification.

Workplace Solutions: Fitness for duty examinations are a useful instrument for employers, but be wary of playing solo. Your favorite Seyfarth attorney can chime in to make sure you land on the right note.

Edited by Coby Turner and Elizabeth Levy

Seyfarth Summary: Like the singers in “California Dreamin,” many out-of-state employers—on a winter’s day and otherwise—might dream of operating in California. California is an attractive market for out-of-state companies. But employers who hire employees in California or send employees to work there face a unique set of challenges. Below are some key areas of employment law these companies should consider if they want to be “safe and warm in L.A.”

Background

Access to the California market—the sixth largest economy in the world—is irresistible for many companies. But doing business there entails a unique set of risks. California confronts employers with an often hostile combination of regulatory oversight, complex employment laws (creating draconian penalties for failure to comply), and employee-friendly courts and administrative agencies. Before dipping a toe onto California’s shores, out-of-state businesses should understand whether and when California’s peculiar (and often unique) employment laws apply to their employees.

California judicial decisions have made clear that even employers who are primarily based out-of-state and have only a few employees in California must comply with California employment law. In a 2011 decision, Sullivan v. Oracle, the California Supreme Court held that non-California residents working in California for a California-based employer were subject to California’s daily overtime laws when they worked in California for a whole work day. Oracle left employers up in the air as to whether California law would apply in other contexts, such as when non-California residents work partial days in California and such as when other issues other than overtime pay are involved.

In 2018, the Ninth Circuit requested the California Supreme Court to address some of these outstanding questions in cases against United Airlines and Delta Airlines. The Supreme Court has not yet ruled.

Meanwhile, out-of-state employers are well-served by seeking counsel before hiring employees in California or even sending employees to the Golden State to conduct business on a temporary basis. Some of the California peculiarities facing out-of-state employers are:

  • Minimum Wage—As of January 2019, the minimum wage for larger employers (having more than 26 employees) rose to $12. (And California’s minimum wage for all employers will incrementally increase to $15 an hour over the next few years.) Meanwhile, California has no shortage of progressive jurisdictions (safe and warm LA among them) that have their own special minimum-wage laws.
  • Daily Overtime—California non-exempt employees must be paid at one and one-half times the regular rate for all hours worked over eight in a day (and any hours worked on a seventh consecutive workday during a workweek) and must be paid doubletime for all hours worked over twelve in a day (and any hours worked over eight on a seventh consecutive day during a workweek). These rules contrast sharply with federal law, which requires overtime pay only when employees work more than forty hours during a workweek.
  • Itemized Wage Statements—California employers must provide hyper-specific items of information on wage statements. Failure to do so can result in the imposition of hefty penalties. These requirements include, among other things, gross wages earned, total number of hours worked, net wages earned, the period during which the wages were earned, all deductions, and all hourly rates applicable during the pay period.
  • Meal and Rest Periods—Non-exempt employees working in California must be provided certain meal and rest periods (and recovery periods). Moreover, employers must keep accurate records of employee meal periods and pay a penalty when either meal or rest or recovery periods are not provided.
  • Independent Contractors—California is peculiarly if not uniquely hostile to businesses that classify workers as independent contractors instead of employees. Misclassifications can trigger substantial liability for missed meal and rest periods, unpaid overtime and unpaid expenses, and even massive civil penalties, among other consequences.
  • Discrimination and Harassment—California recognizes many “protected characteristics” that do not appear in federal law anti-discrimination laws, characteristics such as sexual orientation and gender identity or expression.
  • Local Ordinances—As noted already (but worth repeating), many California local governments, including the Cities of San Francisco and Los Angeles, boast of their own special laws on subjects such as minimum wage and paid sick leave.

Workplace Solution

While the Oracle case left many unanswered questions, employers are well-served by understanding when they need to apply California law, and how to correctly implement it. Feel free to contact your favorite Seyfarth attorney if you would like to discuss.

 

Edited By: Elizabeth Levy

Seyfarth Synopsis: The California state assembly is set to vote on Senate Bill 171, a state analogue to the federal EEO-1 report, which would require employers with 100 or more employees to submit annual pay data reports to the Department of Fair Employment and Housing, broken down by gender, race, ethnicity, and job category.

Pay Data Reporting at the State and Federal Level

The California Legislature may be poised to pass a law that would require California employers to submit pay and hours data to the Department of Fair Employment and Housing (“DFEH”).

This information is duplicative of “Component 2” of the federal EEO-1 report. The revised EEO-1 form was an Obama-era change to require employers with 100 or more employees to report W-2 wage information and total hours worked for all employees by race, ethnicity, and sex within 12 proposed pay bands.

When California Senate Bill 171 was first introduced in January 2019, the federal collection of pay and hours worked data was indefinitely stalled after the federal Office of Management and Budget (“OMB”) stayed the implementation of the federal pay data collection portions of the revised EEO-1 Report. That decision prompted the National Women’s Law Center and the Labor Counsel for Latin American Advancement to sue the OMB and the EEOC, and on March 4, 2019, a federal district court in Washington, D.C., issued an order reinstating the EEOC’s collection of pay data as part of the EEO-1 Report.

SB 171 was initially touted as a groundbreaking effort to “ensure that [pay data by gender, race and ethnicity] will continue to be compiled and aggregated in California” despite the OMB’s actions at the federal level. Now that Component 2 of the EEO-1 is moving full-steam ahead, with employers required to file pay and hours-worked data for 2017 and 2018 in September 2019, SB 171 appears to be redundant because it requires that the same data reported to the EEOC also be reported to the DFEH. SB 171 will be independently significant for California employers, however, if federal efforts to forestall Component 2 ever succeed.

What Pay Data Would be Required to be Reported to California?

SB 171 provides that by March 31, 2021 (and by each following March 31st), any private employer with 100 or more employees must file an EEO-1 report and  the pay and hours-worked data to the DFEH. In response to the judicial reinstatement of the expanded federal EEO-1 report, SB 171 was modified to allow employers to submit a copy of their EEO-1, containing the same or substantially similar pay data information required by SB 171.

What’s the Risk?

While the information submitted to the DFEH will duplicate data submitted on the federal EEO-1, there are still some significant things to watch for if SB 171 becomes law. First, while SB 171 would make the information submitted by any particular employer confidential and not subject to disclosure under the California Public Records Act, the DFEH can publish aggregate reports, so long as they are “reasonably calculated to prevent the association of any data with any individual business or person.”

Second, SB 171 would require that the DFEH “make the reports available to the Division of Labor Standards Enforcement upon request.” Given the DLSE’s mandate to enforce California wage-hour laws and regulations (including California’s Equal Pay Act), employers who fail to properly implement pay equity measures and report pay and hours data risk further scrutiny by the DLSE through field audits and investigations.

Third, the DFEH must maintain pay data reports for not less than 10 years—a period even longer than a California employers’ retention obligation.

What Does This Mean for Employers?

Whether it be to fulfill federal or potential state requirements, many California employers will need to collect, aggregate, and report on employee diversity, pay, and hours. The future is clear: pay equity and pay equity reporting are here to stay. To remain ahead of the curve, employers should continue to work to ensure that pay is aligned across employees. If ever there was a time to develop and implement a pay equity strategy, now is it.

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