Marijuana is legal, but the laws regarding drug testing are slow to change.
Recreational marijuana sales started in January in California, causing many employers in the state to re-evaluate their substance-abuse and drug-testing policies. But the rules governing marijuana and the workplace haven’t really changed … yet.
Employers should note that they don’t have to tolerate on-the-job marijuana consumption or intoxication. California provides a constitutional right to privacy—which restricts employers from monitoring off-duty conduct.
Companies are allowed during the hiring process, to test for illegal drugs at the applicant stage—though it is unclear if marijuana is “illegal,” since it is permitted under state law but remains illegal under federal law.
After employees start working, they have a higher expectation of privacy—so drug testing should be further limited in most cases to suspicion-based inquiries. Random testing is highly restricted in the state and should be reserved for certain safety-sensitive positions.
“A high priority for California employers is the management of medical marijuana issues in the workplace,” said Michael Nader, an attorney with Ogletree Deakins in Sacramento, in an interview with SHRM Online. “Marijuana remains a Schedule I drug that is illegal under federal law, and it is also well-established under California law that employers may rely on federal law in enforcing drug-free workplace policies.”
Recently, a number of state laws, as well as courts have said that employers can’t discriminate against job applicants and employees based on their status as medical marijuana cardholders.
A proposed law, AB 2069, would amend the Fair Employment and Housing Act (FEHA) to include anti-discrimination protections for medical marijuana users.
Perhaps more importantly, it would amend FEHA to include reasonable accommodation and interactive process obligations with regard to medical marijuana use.
It may be beneficial for companies to restructure policies to include the possession and use of medical marijuana on work premises.
Source – SHRM
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