business litigators discuss employee use of marijuana 

Discussion surrounding California’s legalization of recreational marijuana has been intense since the passage last November of Proposition 64. A related issue – medical marijuana – has received much less attention, in spite of the fact that its use has been permitted, at least under some conditions, since 1996 when the California Legislature passed the Compassionate Use Act (CUA). One issue that comes up quite often is the extent to which an employer must accommodate an employee’s use of medical marijuana.

The Ross Decision

Generally speaking, under a 2008 decision by the Supreme Court of California (Ross v. RagingWire Telecommunications, Inc.), California employers need not accommodate a worker who has been prescribed medical marijuana. The Ross Court stressed that the CUA did not grant marijuana the same status as a legal prescription drug. After all, said the court, in spite of legalization for medical purposes in California, marijuana is still a Schedule I drug under the federal Controlled Substances Act. Its use and possession remain illegal under federal law.

The Court added that nothing in the text or history of the CUA suggested the measure was intended to address the respective rights and duties of employers and employees. The employer could take illegal drug use into consideration in making employment decisions. Under Ross, while an employer must consider the feasibility of making reasonable accommodations to a prospective employee with a disability, it need not go so far as accommodate a person’s medical marijuana use, even when the use was consistent with professional medical advice.

Random Testing for Safety-Sensitive Employment

Proposition 64 explicitly allows public and private employers to enact and enforce workplace policies pertaining to marijuana. When it comes to random testing, courts have generally upheld such testing regarding employees who work in safety-sensitive positions (e.g., transportation, heavy equipment, some construction work). Regarding employees whose duties place them in no particular peril, the courts have sometimes invalidated random testing.

Post-Injury Testing

Employers must be particularly careful with mandatory post-injury drug testing. Last year, the federal Occupational Safety and Health Administration (OSHA) published a final rule related to the tracking of workplace injuries and illnesses. While OSHA has indicated that nothing in the rule should be read to prohibit post-injury drug testing, the rule clearly states that mandatory post-injury testing can only be done where the testing can accurately identify impairment caused by drug use. Current testing methods regarding marijuana do not indicate the person’s level of impairment; they only show the presence of marijuana metabolites within the body. So, despite OSHA’s words to the contrary, most employers are being cautious regarding testing, except where there is an actual evidence of impairment.

Governor Brown’s Efforts to Clarify Law

Recently, Governor Brown released an extensive proposal to resolve the many differences between the state’s existing medical marijuana laws. Legal experts predict this will be an active area of discussion and legislation in coming months. As they say, “May we live in interesting times.”

Do Your Drug Policies Need Review?

Have you reviewed your policies regarding medical marijuana use? Do you employ drug testing of job applicants who receive offers of employment? Do you utilize random drug testing to test for the use of marijuana or other drugs among your employees? Do you maintain a zero-tolerance rule for drug use? Many prudent employers are currently reviewing their existing drug policies to ensure that they comply with the law. A number have sought the counsel of experienced commercial and employment attorneys like CKB VIENNA LLP. Our firm has represented all sorts of businesses over the years. Our team understands the complexity of the issues and stands ready to represent you aggressively. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone at 909.980.1040 or complete our online form.

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