Despite the legalization of recreational and medicinal marijuana in California, employers maintain the right to enforce a drug-free work environment. In many respects, cannabis is now treated like alcohol; although consumption of alcohol is legal for those over the age of 21, employers may prohibit drinking during work hours and discipline any employee who comes to work intoxicated. But regulation of cannabis in the workplace differs from alcohol because testing for THC, the compound in marijuana that gets you high, is not like testing for alcohol. Unlike tests for alcohol that measure current impairment levels, there is no test that will reveal whether an individual is currently high. In fact, a regular user may test positive for marijuana weeks after the individual last used. So when may employers test employees for marijuana? When should an employer test?
California is one of the few states with a state Constitution that expressly recognizes a right to privacy. Although drug testing programs implicate this right, they are not necessarily improper. Instead the program is judged on a case-by-case basis using a “reasonableness” balancing test which weighs the gravity of intrusion on an employee’s privacy versus the validity of the employer’s reason for the drug testing.
Pre-Employment Drug Testing
California courts recognize that current employees start with a stronger privacy claim than applicants because they already have a job and a work history the employer can use to evaluate their performance. Job applicants, on the other hand, have no work history for the employer to go on. In addition, applicants also anticipate having to provide personal information during the application process and may expect a pre-employment drug test.
After balancing the competing interests involved, California courts have upheld an employer’s right to require employees, as a condition of employment, to pass a drug test.
Best practices for a pre-employment drug testing policy include:
- A test that applies to all applicants in similar positions, and does not single out certain applicants based on protected characteristics such as race or disability;
- Giving applicants prior notice of the drug test;
- A test that is conducted by medical personnel in a private environment;
- The applicant’s medical information and test results are not provided to the employer. Instead, employers receive a “suitability rating” that does not disclose which part of the test the applicant failed; and
- Any job offer should be made contingent on successfully passing a drug test.
The California Supreme Court has upheld an employer’s right to refuse to hire an applicant who tests positive for marijuana, even if the drug is legally prescribed for a disability. For a further discussion on cannabis, the FMLA, and the ADA, check out AJ Bastida’s blog Working Through the Weeds of Cannabis Laws: Prop 64, FMLA, and ADA.
Testing Current Employees
When it comes to testing current employees, employers may require an employee to undergo a drug test as long as it is based on reasonable suspicion backed by objective and legally sound facts.
What does “reasonable suspicion” look like? According to the Ninth Circuit, reasonable suspicion may include:
- A pattern of abnormal conduct or erratic behavior;
- Observable phenomena such as symptoms of drug use or witnessing use;
- An arrest or conviction for a drug-related offense while employed;
- Information from reliable sources or independently corroborated; or
- Evidence that an employee tampered with previous drug test.
Random Drug Testing
Random drug testing of current employees is highly controversial. California courts have upheld random testing only for very safety-sensitive positions such as pilots, nuclear power plant workers, correctional officers, hazardous pipeline employees, and government employees with secret national security clearances. There are also some federal authorities that require California employers to establish a controlled substances and alcohol testing program that includes random testing. Unless you are required to randomly test or have employees in very safety-sensitive positions, it is not advisable to randomly test for drugs.
With the legalization of recreational and medical marijuana, now is the time for employers to establish a written drug-free workplace policy, pre-employment drug testing procedures, and reasonable suspicion guidelines. Employers should take the time to train managers on how to identify reasonable suspicion and what to do if an employee is suspected of being under the influence of marijuana at work. For assistance in developing your company’s drug and alcohol-related policies, consult an employment attorney.