California voters have made the use of marijuana in California legal, but this raises significant questions as to how companies can adopt policies that prohibit using cannabis at work. The California Drug-Free Workplace Act and other legislation gives employers the right to enforce their policies, even when an employee uses marijuana products outside of work which do not impair performance on the job. Generally, an employer’s anti-cannabis policy should explain why the restriction promotes the legitimate business interests of the company
California legalized the use of marijuana for medical purposes under the Compassionate Use Act of 1996. In November 2016, Californians passed Proposition 64, a ballot measure allowing the possession and use of moderate amounts of marijuana for recreational purposes. In June 2017, California enacted the Medical and Adult Use Cannabis Regulation and Safety Act, which effectively repealed the Medical Marijuana Regulation and Safety Act.
The current laws permit employers to enforce workplace policies pertaining to marijuana.” The laws state that the legalization of cannabis use does not (i) restrict the rights of employers to maintain a drug free workspace, (ii) require an employer to permit or accommodate cannabis use in the workplace, or (iii) affect the ability of employers to have policies prohibiting the use of cannabis by employees and prospective employees
In Loder v. City of Glendale, the California Supreme Court ruled that employers have the right to undertake pre-employment drug testing “[i]in light of the well-documented problems that are associated with the abuse of drugs and alcohol by employees – increased absenteeism, diminished productivity, greater health costs, increased safety problems and potential liability to third parties, and more frequent turnover.” The ruling held that the California Fair Employment and Housing Act does not require employers to accommodate the use of illegal drugs.
In 2008, the California Supreme Court found that neither the Compassionate Use Act nor the accommodation requirements of the Fair Employment & Housing Act and that an employer could fire an employee who failed a pre-employment drug test after he disclosed that, at his physician’s recommendation, he was using medicinal marijuana for back spasms as a result of injuries suffered while serving in the Air Force. Ross v. RagingWire Telecommunications, Inc., 42 Cal.4th 920 (2008).
Despite the enactment of laws permitting companies to prohibit marijuana use among employees, employers should carefully consider incorporating language into their policies that expresses the rationale behind their prohibition. An examination of factual, scientific evidence of the impact of being under the influence at work, rather than mere speculation, should precede policy development.
On July 17, 2017 the Massachusetts Supreme Court ruled that an employee taking lawfully prescribed marijuana to alleviate effects of Crohn’s disease and was terminated for being under its influence at work may pursue a civil remedy. In Barbuto v. Advantage Sales and Marketing LLC, the plaintiff used medicinal marijuana at home on two to three nights a week. When asked to take a drug test, she i\told her supervisor that she would test positive. After a human resources officer reviewed the test results, she was fired. She sued. The Massachusetts Supreme Court held that the plaintiff could seek a civil remedy under the state’s handicap discrimination law, but not under the Massachusetts voter initiative permitting the use of marijuana which does not permit a private lawsuit.
Most municipalities expressly prohibit the consumption of cannabis on the premises of cannabis businesses. For example, the City of Los Angeles has proposed commercial cannabis regulations. If adopted, the regulations will require businesses to monitor employee conduct to assure that employees do not consume cannabis on the premises and within the parking areas and require employers to post “No…Smoking of Cannabis” signs in and outside the business.
In the meantime, California employers may conduct pre-employment drug testing and refuse to employ individuals who test positive for marijuana use. While a few cases allow employers to terminate an employee when the drug test is administered after the employee is on the payroll, the better practice is to conduct the test prior to on-boarding the candidate. Random testing of current employees, however, must be justified by compelling employer interests. Failure to articulate such interests may expose an employer to substantial damages in post-termination litigation claiming a violation of the right to privacy.
Arthur F. Silbergeld is an employment litigation attorney at Thompson Coburn LLP and may be reached at (310) 282-9412. He has worked closely with Potts & Associates for over 35 years.