Californians may have legalized recreational marijuana this past November, but that does not mean employees can start showing up to work high. Employers still have the right to “maintain a drug and alcohol free workplace” under the new law. The first thing employers should do in response to the new law is update their drug and alcohol policies to include the use of recreational marijuana. The new law states it shall not be interpreted to 1) require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace, 2) affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or 3) prevent employers from complying with state or federal law. (As a reminder, marijuana remains an illegal Schedule I drug under federal law).
Under existing California law, employers have the right to conduct pre and post-hire drug testing in accordance with a lawful drug testing policy. Thus, even with the passage of Proposition 64, a current employee who tests positive for marijuana during such a lawful test, may be disciplined or fired for violating the employer’s drug and alcohol policy. Similarly, an employer may still refuse to hire a prospective employee who tests positive for marijuana after being given a job offer contingent on passing a drug test. Proposition 64 does not change these employer rights.
Employers need to review and update their written drug and alcohol policies to cover the recreational use of marijuana, and ensure that employees receive notice of the updated policy. Before implementing a workplace drug testing policy, several additional issues must be carefully considered, including the desirability of communicating the policy to prospective employees, the effect of the policy on employees’ privacy rights, the timing of any test, the manner of testing for applicants versus employees, whether an employer must bargain any changes with a union, etc., making it advisable to consult a labor and employment attorney in regard to such.