November 16, 2020

California has legalized the medicinal and recreational use of cannabis. However, while California may allow for private usage, there is no duty by an employer to tolerate cannabis consumption by its employees.

Cannabis is now a legal substance in California for adults 21 and over, to purchase and consume in limited quantities. For more information regarding the journey to legality, read our article, The Timeline of Cannabis Legislation in California.

Drug-Free Workplace
An employer has the right to a drug-free workplace. Just like an employer may require an employee to abstain from drinking on the job, an employer may require an employee to abstain from cannabis consumption. In Ross v. Ragingwire Telecommunications, Inc. the California Supreme Court held employers were not required to accommodate cannabis use in the workplace, including medical cannabis for a disability, as cannabis is still a Schedule I illegal substance under federal law. This remains good law, even after the passing of Proposition 64. [Ross v. Ragingwire Telecommunications, Inc. (2005) 33 Cal.Rptr.3d 803, 810, 812.]

In fact, if an employer receives a contract or a grant from the state of California, the California Drug-Free Workplace Act of 1990 requires the employer to certify that its workplace is drug-free. [Gov. Code § 8350, et seq.] With cannabis law still evolving, it is the best protocol to include a drug-free workplace clause in the initial employee manual given to employees. However, sometimes, even with the proper guidance and regulations in place, an employer may suspect that an applicant or an employee is using cannabis. An intoxicated employee puts the workplace at risk, and decreases productivity. What rights does an employer have to drug test an employee, to enforce a drug-free workplace?

Pre-Employment Testing
California law allows an employer to require a drug test as a condition of employment, after extending a job offer. For pre-employment drug testing to be a valid condition of employment, the employer must not discriminate against certain candidates by requiring a drug test. All applicants must be required to comply with the company’s condition of a drug test to secure employment.

Employers should be up front regarding denying employment for a positive drug test. While most prescription medication is exempt from drug-testing, marijuana prescriptions do not invalidate a positive drug test, and employers in California may still deny employment if an applicant has used legally-acquired cannabis.

To preserve the integrity of a drug test for applicants, the employer should have the test conducted in a private location by medical personnel.

Routine or Random Drug Testing
Once an applicant is hired, and becomes an employee, privacy laws make it more difficult for an employer to test for any drug usage, including cannabis. An employer generally may not require an employee to submit to a random or routine drug test, without narrowly defined circumstances. A court may be inclined to declare an employee drug test legal/not an invasion of privacy where there is reasonable suspicion of drug activity.

Reasonable Suspicion Drug Testing
Reasonable suspicion of drug activity includes:

– Direct observation of drug use and/or the physical symptoms of being under the influence of drugs or alcohol;

– A pattern of abnormal conduct or erratic behavior;

– Arrest or conviction for a drug-related offense, or the identification of an employee as the focus of a criminal investigation into illegal drug possession, use, or trafficking;

– Information either provided by reliable and credible sources or independently corroborated; and/or

– Newly discovered evidence that the employee has tampered with a previous drug test.

[ (November 16, 2020).]

In employment where the industry is safety sensitive, courts have upheld random drug testing.

Safety-Sensitive Industries
Federal and state laws allow for stricter requirements where employees are in industries considered safety sensitive. In industries where employees are in a safety-sensitive position, California courts have upheld random drug testing. This includes positions such as nuclear power plant workers, officers, pilots, and government employees with clearance. In a safety-sensitive industry, failure to comply with a drug test could result in penalties for the employer, and also the employee.

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This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.