Marijuana Legalization and Employer Drug-Testing Policies

Legalization of recreational marijuana is on the horizon in California. But meanwhile, there are a lot of employers who still drug test as a condition of employment. In many cases, testing positive for marijuana is grounds to deny someone a job. marijuana1

Will legalization change that?

That question was explored recently in L.A. Weekly, which noted that if voters agree to approve recreational marijuana on Nov. 8, employers could find themselves in hot water if they ask prospective or current employees to pee in a cup.

This type of common pre-screening measure, legal analysis opine, could potentially undermine a worker’s right to privacy. But potential employees have to decide whether they want to refuse such a test – and be outright denied the job – or go ahead and take it and be outed as a marijuana user.

Employment lawyers, businesses and those in the workforce are questioning what the guidelines should be after recreational marijuana legalization in California (there is an assumption it will happen, it’s simply a matter of when).

One view, as voiced by the Society for Human Resource Management (which has 285,000 members nationally) is that while legalization will protect individuals from prosecution, it won’t necessarily protect them from being denied a job or being fired from a job.

California was the very first state to legalize medicinal marijuana back in 1996. Yet even after the law passed, it did not stop employers from making employment decisions based on marijuana use – even against those who had a valid marijuana prescription.

The majority of employers are concerned about workers coming onto the job and doing something dangerous or for which they might be liable. That’s why they maintain zero-tolerance policies. Think of it this way: Alcohol is legal, but it’s not Ok to drink it on-the-job. Same concept.

Unfortunately for those who use marijuana – either for medical or recreational reasons – federal law puts very few limitations on employer drug testing. Our L.A. marijuana lawyers know U.S. law neither allows it or prohibits it. Mostly, it’s left up to state and local governments to decide.

In California, the state’s Compassionate Use law gives people the right to use the drug for treatment of serious illnesses. Yet, the California Supreme Court ruled companies can refuse to hire a prospective employee who tests positive for the drug – even when it’s legally prescribed for a disability.

On the flip side, employers could be doing themselves a disservice. For example, it may make sense to prohibit someone who may be under the influence of marijuana from a job operating heavy machinery. However, in jobs where there is not that kind of potential immediate danger, employers could be denying themselves the best candidates for the job – some of whom will simply walk out if they find out there is a drug test as part of the qualification process.

And one other thing for employers to consider: Drug testing can be expensive. Not only is an ineffective means of telling you who is the best person for the job, it’s costly.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 714-937-2050.

Additional Resources:

How Marijuana Legalization Could Affect Employer Drug Testing Policies, July 18, 2016, By David Futch, LA Weekly

More Blog Entries:

San Bernardino Marijuana Dispensary Vote Seems Likely, June 19, 2016, California Marijuana Lawyer Blog