California employers have much to comply with and maintaining clear and legally binding workplace drug policies is important. And confusing, thanks to new laws.
California joined a number of other states by legalizing recreational use of marijuana by adults November, 2016. The passage of the Adult Use of Marijuana Act (AUMA) legalized the recreational use of marijuana for adults 21 years old and over.
Unlike many other laws, the provisions of this new law regarding the legalization of marijuana and workplace protections took effect the day after the election on November 9, 2016. Since then, numbers of employers - and employees - have had questions as to the impact on their workplaces.
What the Law Allows
Even though the legalization of marijuana for recreational use was a major change in the previous law, it did completely change everything. Smoking or ingesting marijuana in public, for example, is still illegal, as is smoking or ingesting marijuana in places where smoking tobacco is prohibited. Driving under the influence of marijuana remains illegal, as well.
The concern for many California employers is the impact of the law when it comes to the workplace. While it has been in effect for only five months now, many employers are still working through their own workplace drug policies. Fortunately for them, the new law preserves the status quo for employers who want to maintain a drug and alcohol-free workplace.
In large part, this is due to the fact that employer policies on drug possession, use and impairment, and drug testing were not compromised nor invalidated with the recent legalization of marijuana use.
The primary component of the law is the decriminalization of "recreational" marijuana use. It does not constitute a ban nor restricts an employer’s right to regulate marijuana usage in their workplaces. In fact, it explicitly allows public and private employers to enact and enforce workplace policies pertaining to marijuana.
AUMA Does Not Interfere With Workplace Policies
The labor law also clearly states that it does not amend, repeal, affect, restrict, or preempt:
“the rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace, or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.”
In addition, according to the federal Controlled Substances Act, marijuana still remains a Schedule I drug, which means it is a controlled substances prone to abuse and psychological/physical dependence. This means that California employers can still rely on federal law when refusing to hire applicants who tested positive for marijuana use.
It also means that employers may continue to prohibit use, possession and impairment at work and may continue to test for use when appropriate.
The good news for businesses is that the law specifically allows employers to continue pre-employment screening and limited testing of current employees. Under existing California labor law, pre-employment drug testing is permitted if the employer screens all applicants. In addition, companies are allowed to randomly test employees who perform safety-sensitive jobs, if there is a reasonable suspicion that the employee is under the influence, and where it is already required by federal law.
However, the rules concerning post-employment testing are complex and they require fact-specific analysis to avoid invasion of privacy claims under the California law. Because of these concerns, employers should review their testing policies and procedures with legal counsel.
The bottom line for employers in California is that they may continue enforcing their drug-free workplace policies regardless of whether their employees use marijuana for medical or recreational purposes. In other words, although employees in California are no longer prohibited from consuming the drug under limited circumstances, the possession, use, and sale of the drug, remains illegal under federal law.
Employers and Medical Marijuana Use
The AUMA is very clear in that it allows California employers to develop or maintain drug-free workplace policies. The wording of the law maintains that this applies equally to employers who have employees who use for medical and non-medical reasons.In other words, the new law does not require an employer to allow or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace, or prevent employers from complying with state or federal law.
If they have not already, California employers should review their drug and alcohol policies to ensure they have appropriate policies and procedures in place. In addition, it is a good practice to periodically remind employees not only about the company’s general drug-free workplace policy and practices, but also to make it clear that marijuana is also prohibited.Companies that do not have policies in place should determine what they want to establish regarding employee drug use and develop policies accordingly. In addition, employers without a drug testing program should consider implementing one, and clarify and document the consequences for positive test results.
Getting Help With CA Labor Law
Another key step in maintaining HR compliance while increasing your company's cost-effectiveness is to consider outsourcing. A professional payroll management and workforce solutions provider such as Accuchex can offer much-needed help with Human Resources needs and questions.
If your organization would like to learn more about its obligations, or acquire resources to deal with these types of situations, Accuchex recently partnered with HR Solutions Partners to offer its customers the most up-to-date and professional human resources management solutions available. To learn more about the different levels of Human Resource Management services available, please follow this link.
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