Employers Can Keep Drug-Free Workplace, Despite Weed Legalization

With the new law in California legalizing marijuana, what are our obligations and rights?

California’s new law on recreational marijuana can create some difficulties for employers. This law was enacted in 2017, but as of January 1, 2018, people in California now have the right to sell and/or purchase marijuana.

Employees may think they can use marijuana and come in to work; however, the law is unchanged in one regard: Employers have the right to have employees who are not impaired—be it under legal or illegal drugs. As a comparison, alcohol is legal, but one cannot drink it on the job.

Drug Testing

Employers still have the right to conduct pre-employment drug testing, as well as reasonable suspicion testing if a stated policy is in place.

Testing for marijuana, however, is more problematic than for other drugs. The drug stays in the body’s system far longer than other drugs or alcohol, and the results are not as precise.

Marijuana in the Workplace

There appears to be some confusion on employees’ part. They may think that employers can’t fire employees now that marijuana is legal, but employers still can enforce employment policies as there is nothing in the law which states that an employer has to accommodate the marijuana usage.

Other predictable problems come up, including the possibility that employees might “indulge” during their meal breaks.

It must be stressed that using marijuana while driving is just as illegal as using alcohol while driving. A new state law makes smoking marijuana while driving or riding as a passenger illegal—a move to combat a type of intoxicated driving officials fear may become more common and more dangerous.

The best practice might be to freely inform your employees of these issues. Any ambiguities need to be clarified, and employees need to be aware of the consequences of indulging while at work.

The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

Staff Contact: Dana Leisinger