Recently California passed Proposition 64 which legalized the use of marijuana for recreational purposes. It is now legal for an individual to possess 28.5 grams of marijuana and 8 grams of concentrated marijuana. However, the legalization failed to address the issue of marijuana usage at work (or before work) where the employee may be impaired by the substance when reporting for work. Proposition 64 focused on issues such as taxation, cultivation, packaging labeling and advertising; but did not answer the question for employers of how to deal with the impact on employment.
My advice to employers is that, until we have regulations further defining this issue, marijuana should be treated similarly to alcohol. Employers should make it clear that both substances (as well as others) are prohibited during work time or before work, as there will be impairment at work. This, of course, raises a myriad of legal issues regarding how to prove impairment, including what constitutes “under the influence of marijuana,” since there is currently no legal standard for this. Until the State Legislature catches up with the State election process, employers must do the best they can in handling this issue. Employers are recommended to have a drug testing policy in place which requires a full-blown analysis of: 1) when employees will be tested; 2) what they will be tested for; 3) the types of test that will be conducted and 4) what happens if a test is positive, negative or if the employee refuses. Companies that fall under the Federal Department of Transportation guidelines and the DOT drug testing rules, will already be familiar with these rules. However, private employers who do not fall under DOT must be careful. Most likely they are not going to be able to drug test employees once hired unless there is “reasonable suspicion” or a “post-accident”, where there is no other apparent reason for the incident. This is further complicated by recent regulations issued by OSHA which ruled that employers may not robotically require drug testing following any and all accidents no matter how minor. OSHA has not prohibited post-accident drug testing but has issued regulations that will require employers to examine the facts of each case to determine whether there was some other reasonable grounds for the accident as opposed to robotically requiring a drug test. OSHA’s purpose was to combat employees from being discouraged from filing accident claims for fear of being drug tested.
At this time, employers should not be allowing alcohol to be used or consumed at work or at work functions (including holiday parties and luncheons with clients) as the liability is simply too great. Marijuana should be treated similarly as it is now legal but creates similar impairments when used. The more difficult questions will follow in the upcoming months as to how long marijuana impairs individuals, and what to do with an individual who is using marijuana on their free time (over a weekend or a vacation) and then reports back to work; sometimes hours, days or even a week later. Likewise, the new law does not help with issues of “accommodations” under the law for medical marijuana. More to come as these regulations are flushed out. In the meantime, if an employer is unsure how to handle these issues, contact Dave Cohen at The Employers’ Council to discuss their particular situation.
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