- Posted by Laura Croft, Esq
- On March 7, 2017
- cannabis, Employee Drug Testing, Employee Rights, Employment, MCRSA, Medical Marijuana, Proposition 64
After the passage of Prop 64, which legalized the adult recreational use of Cannabis, Cannabis users are echoing the question: “Can I now refuse drug testing for Cannabis and am I exempt from any implications from testing positive for Cannabis use?” The answer is a firm “No.” Presently, employers can test employees for Cannabis use and Prop 64 allows employers to continue to discriminate against their workers, even when an employee’s Cannabis use is during nonworking hours. Prop 64 specifically “allow[s] public and private employers to enact and enforce workplace policies pertaining to marijuana.” AB 243, AB 266, and SB 643,
Cannabis is known to remain in an individual’s system long after its psychoactive effects wear off. Research determining how quickly cannabinoids from marijuana are cleared from the body varies. Sources estimate that it takes 25 days, others suggest 11 weeks, and others imply that it takes at least 15 weeks for Cannabis to completely leave an individual’s system. Therefore, an employer’s ability to penalize employees for engaging in state-sanctioned Cannabis use, despite any indication of impaired work performance, creates a frustrating and seemingly unfair conundrum.
In California, a state that is heralded as “a pioneer in the regulation of marijuana,” Gonzlaes v. Raich, supra, 545 U.S.545 1, 5(2005), even medical Cannabis patients are not protected against employment discrimination. In Ross v. Ragingwire Telecommunications, 70 Cal.Rptr.3d 382 (2008), the California Supreme Court ruled that employers can drug-test and fire workers for using medical marijuana. Thereafter, Governor Schwarzenegger vetoed Assemblyman Mark Leno’s bill, AB 2279, to protect workers’ right to use medical marijuana.
Presently, employers are afforded the ability to craft a drug testing policy that meets their company’s needs and comports with applicable law, and an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions. Loder v. City of Glendale (1997) 14 Cal.4th 846, 882-883, 59 Cal.Rptr.2d 696, 927 P.2d 1200. “People think that they have all of these job protections, but they really don’t,” Adam Winkler, a professor of constitutional law at UCLA, explained to the Mercury News. Employment in the United States is “at will.” An employer has great leeway to impose requirements or restrict activities of employees, ranging from refusing to hire workers who smoke cigarettes to forcing workers to turn over passwords to private social media accounts. An employee’s remedy is to walk away from the job. Adam Winkler.
Hopefully, employers in California, a state that sanctions both medicinal Cannabis use and recreational adult Cannabis use, will seek a balance, narrowly tailoring Cannabis drug testing policies to help both protect patients’ rights and preserve a safe and productive work environment. Any policy must comport with existing policies for other drugs such as amphetamines, opioids, sleeping pills, and pain killers.
Ten states have made it illegal for an employer to not hire or discriminate against either a job applicant or employee who uses medical Cannabis, under certain conditions. Currently, California is not one of those states; however, in light of California’s generous employee protection laws, California may be next to follow suit and allow employees to claim that medicinal Cannabis is necessary for employees with disabilities.
For now, CannaBusiness Law reminds all employees that employers can continue to treat medical Cannabis as an illegal drug and employers do not need to accommodate Cannabis use, medical or otherwise, in the workplace.
Contact CannaBusiness Law for expert assistance in compliance with Cannabis related laws, as well compliance with Cannabis licensing, permitting and the application process relating to commercial Cannabis in California.