Marijuana is now legal in California, but the new law states that employers still have the right to maintain a drug- and alcohol-free workplace and can keep policies that prohibit the use of cannabis by employees and prospective workers. What does that mean for the public sector workplace? Will drug policies be eliminated? Legal experts and advocates say loosened drug screening for marijuana is already happening in some industries.
Medical marijuana, legal in California since 1996, is not exempted under employer drug testing policies. In 2008, the California Supreme Court ruled that because marijuana is still considered illegal under federal law, employers do not have to accommodate their employees’ medical marijuana use, even if it is during non-work hours.
Ray Marin who has a genetic liver disease has difficulty filtering out toxins. He cannot drink alcohol or take opioid pain killers for a back injury. With his doctor’s blessing and following all pertinent state laws, he used medical marijuana vapor to find relief. A few weeks later, he was fired from his job at a Madera winery. He had failed a drug test upon returning to work, causing him to lose a position he had held for five years and, crucially, his medical benefits.
Because marijuana can show up in urine or saliva tests several days after use, and those concentrations found aren’t necessarily indicative of usage patterns there’s no clear consensus on how much marijuana is considered too much to drive safely or operate machinery.
Employees should be familiar with their companies’ drug policies and not just assume that procedures have changed, said Tamar Todd, director of legal affairs at Drug Policy Alliance, an advocacy group and major backer of Proposition 64, which legalized recreational marijuana use in California. Driving under the influence of marijuana is still a crime under California law.
Employment lawyers are telling companies to update their employee handbooks to clarify that drug screenings will still test for marijuana.