A Drug-Free Workplace: California’s Changing Landscape
As the Firm Administrator of a mid-size boutique litigation firm, I don’t encounter as many problems as my counterparts at larger law firms face. However, we recently reviewed and revised our firm’s Employee Handbook, which raised an issue that prompted me to do more research. Like most firms, we have a section of our handbook titled “Drug-Free/Alcohol-Free Environment.” It certainly makes sense that most employers, especially law firms, would prohibit their employees from being under the influence of alcohol or drugs while at work. Some surprising statistics from The National Institute on Drug Abuse found that drug-dependent workers are sixteen times more likely to be absent from work, they use twice the amount of healthcare benefits, and drug-dependent workers are five times more likely to file a worker's compensation claim. Given these statistics, it is essential to have a strong drug and alcohol policy. Our firm’s policy provides for drug/alcohol screening whenever the firm has a reasonable suspicion which may arise from, among other factors, supervisory observation, co-worker reports or complaints, performance decline, attendance or behavioral changes, results of drug searches, involvement in a work-related injury or accident, or other detection methods. So, as we worked on the update to our handbook, we asked the question: Does the policy need to be revised to accommodate the potential prescribed medical use of marijuana? After researching the issue further, I was surprised to find out that California employers have no clear guidance on this issue.
Marijuana use has been prohibited at the federal level since 1930. The current federal law prohibiting marijuana possession, use, and distribution is the 1971 Controlled Substances Act which classifies marijuana as a Schedule I drug. However, in the early 90s, many states began legalizing medical marijuana. In 1996 California joined the movement and became the first state to permit medical marijuana use. Seventeen states went further and today allow marijuana use for recreational purposes. Despite California legalizing medical marijuana, California employers have long been permitted to act against employees testing positive for marijuana, regardless of whether that employee legally utilized marijuana for medicinal purposes. In 2008, the California Supreme Court, in Ross v. Ragingwire Telecommunications, Inc., held that employers are not required to accommodate marijuana use, even for medical treatment or disability, as long as it remains illegal under federal law because state cannabis use laws do not change federal law.
In 2016, California legalized the recreational use of marijuana, and since then, marijuana consumption has increased in all categories of use. COVID-19 saw a direct impact on the increase in marijuana use and consumption. Since 2020 some states have seen a rise of 20% in sales, and daily sales of edible products increased by 28%. Studies cite an increase in the use of marijuana to relax and as a coping mechanism due to workers having more time on their hands and because of remote work-related stress. Use by females continues to increase every year; studies show that in 2018, 38% of new consumers were women, and by 2021 that number reached 48%. In contrast, 62% of new consumers were men in 2018; by 2021, that number dropped to 52%. In addition, CBD products are now widely popular in all forms, from drops to creams. CBD is a chemical found in marijuana that contains less than 3% of tetrahydrocannabinol (THC), the psychoactive ingredient in marijuana that produces the high. CBD is increasingly being used for its muscle relaxing properties.
In response to the rising use and popularity of marijuana, the California legislature has repeatedly sought workplace protections for its use. The first legislation in 2017 attempted to prohibit employers from refusing to hire persons who use marijuana and possess a valid state identification card. It failed. In 2019, another bill that would have prohibited an employer from terminating an employee based on a positive drug test if the use was part of a prescribed treatment program also failed. Again in 2021, Assembly Bill 1256 (AB 1256) died, but in April 2022 was replaced by AB 2188, which would make it unlawful for an employer to discriminate against an adult applicant or employee based upon the “person’s use of cannabis off the job and away from the workplace” or “a failed drug test detecting non-psychoactive cannabis metabolites.” The bill would not permit an employee “to be impaired by, or to use cannabis on the job” or affect “the rights or obligations of an employer to maintain a drug and alcohol-free workplace.” The bill is in committee hearings and could be sent for a vote by the end of the month.
Absent any action by the California legislature, California employers are guided by federal law, which continues to prohibit marijuana/cannabis use. Since the 1971 Controlled Substances Act, the Drug-Free Workplace Act of 1988 required some federal contractors and federal grantees to agree that they would provide drug-free workplaces as a precondition of receiving a contract or grant from a federal agency. In addition, federal courts have ruled that the Americans with Disabilities Act (ADA) does not require a medical marijuana accommodation. No state laws allow workers to be impaired or under the influence of alcohol, cannabis, or other illegal controlled substances while at work. So, until California law changes, the proper and conservative position is to provide for a Drug-Free and Alcohol-Free Work Environment without exception.
Review your company’s policy regularly. It is important to clearly spell out the organization’s position on medical and recreational marijuana use. Make sure there is a statement that reads “Subject to Federal, State, and other applicable law.” An example of a policy statement should read, “In accordance with federal, state, and local law, the company prohibits any employee from the use, possession, cultivation, manufacture, distribution, dispensation, sale or storage of marijuana/cannabis under any circumstance, including being under the influence of marijuana/cannabis while on company property or engaging in company business, regardless of whether the employee has a medical marijuana/cannabis card or a prescription for medical marijuana.” Don’t rely solely on drug tests (positive for THC) as a definitive positive test for marijuana use as the THC marker accumulates in body fats and will stay in the body’s system longer than most other drugs. Determination of use or influence should also be based on documented signs or symptoms of being impaired. The California landscape is ever-changing, so employers should regularly monitor state and local developments as the legislature continues to seek greater employee protections for marijuana use.
References: National Institute on Drug Abuse, Department of Health and Human Services, and Cannabis (Marijuana) in the Workplace, Impact of COVID-19 and Work at Home, Version 1 – Created by Webinar Solutions, May 26, 2022.