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The 411 on California’s New 420 Proposition

What is Happening?

Does the legalization of cannabis use and sale in California make you, as an employer, worry that your company’s drug testing criteria, discussions, and policies are going up in smoke? Not sure you know how to weed out the changes that will impact you? To be blunt: you are not alone.

Since November 8, 2016, employers in California have been adjusting to Proposition 64: the legalization of marijuana for recreational use. Beginning January 1, 2018, this Proposition will also allow the sale of marijuana in licensed stores (for adult use).

Here are the key considerations to help California employers understand the drug testing impacts of this change.

Act Basics

Proposition 64, the California Marijuana Legalization Initiative (often referred to as the Adult Use of Marijuana Act), passed by a 57% to 43% popular vote. This made it legal for adults ages 21 and older to possess and use marijuana for recreational purposes, at home or at businesses licensed for on-site marijuana use. Possession on the grounds of a school or other childcare location while children are present remains illegal, as does use while driving a vehicle and in all public places.

The Bureau of Medical Cannabis Regulations was renamed the Bureau of Marijuana Control, and became the governing body responsible for regulating and licensing marijuana business. Local governments can still ban the sale of marijuana or “reasonably regulate” its growth, possession, and use. Proposition 64 also includes parameters around taxation, tax revenue distribution, and more, and has many implications for California employers.

Hiring & Screening

Application & Interview

Best Practice:
Much like background checks, it is best practice to only discuss an employment screening component if it is required. Always interview the candidate first; confirm they are qualified.

Important:
Regardless of what information the candidate proactively shares (they use drugs, have concerns about test results, etc.), it is important to be clear that an employment decision will only be made based on test results–not ‘hearsay’ discussions. For perspective, if an employer declined to move forward with a candidate because they SAID they DO use drugs, it would be equivalent to deciding NOT to test someone because they SAID they do not use drugs. Focus on quantifiable drug test results.

Pre-Employment Drug Testing

Best Practice:
Have a legally sound drug testing policy and consent form. Understand what constitutes a ‘pass/no pass’ based on the drug panel you are utilizing, and how drug use relates to the position. And be sure to apply your process consistently to all applicants.

Important:
If you do not understand a test result (e.g. the results are noted as ‘inconclusive’) make sure you are working with a lab who can explain the meaning of the result (e.g. sometimes ‘inconclusive’ represents a urine test that was below/above normal body temperature ranges).

On the Job

Cause Drug Testing

Best Practice:
Train your managers on what cause means, how to communicate concern about an employee’s behavior, how to document, and the proper steps that lead up to a drug test for cause.

Important:
Some symptoms that constitute cause (e.g. slurred speech, dizziness, flushed face, stumbling, etc.) can also be symptoms for other conditions (e.g. heat exhaustion). Ensure your managers have a holistic knowledge of their work environment so they review causes appropriately.

Termination Criteria

Best Practice:
Again–have a legally sound drug testing policy and consent form.Also, understand what constitutes cause criteria, and have a clear internal policy on how to manage an employee suspected to be intoxicated and clear criteria on when/if an employee can then be terminated.

Important:
Train managers to document cause behaviors instead of labeling them, and to always note witnesses. For example, instead of noting ‘employee was clearly acting intoxicated,’ document ‘employee had red eyes, slurred speech, smelled of marijuana, was stumbling, and could not follow our conversation with a coherent verbal response. Both I and [name] witnessed this.’

Bottom Line on Recreational Marijuana

Even though recreational marijuana will be legal in California, employees can still be drug tested at hire if it is relevant to their roles and they have consented in writing to an employer’s clear drug-free workplace policy. They can also be tested for cause during employment, if that is clearly defined in a reasonable manner in their employer’s policy. And they can still be not hired (or be terminated) for failing a drug test, if the employer is applying their mutually accepted policy compliantly and consistently. Individuals do have more rights for open purchase and use, but employers still have the right to enforce drug-free workplaces if there are reasonable, compliant methods applied.

Medical Marijuana: Additional Considerations

There are some ADA accommodation nuances employers sometimes need to consider for employees with medical marijuana cards. But generally, if an employer requires a drug-free workplace to mitigate risk, then an employee’s medical marijuana card acts much like a prescription for narcotics; these prescriptions do not entitle workers to be intoxicated on the job.

If employees consent to a drug-free workplace and acknowledge an understanding of why this is important for their roles, and their employer’s policy is clear, then neither recreational nor doctor-prescribed use/intoxication while working is acceptable.

The Future

Employers should keep in mind that we are in untested waters. Legal precedent is scarce, so there are gray areas that will continue to evolve as more people question rights and policies. If you are challenged by an accommodation request, and/or you have questions on how to apply your drug-free policy, a good lawyer can be worth his weight in gold… or ganja.


Lisa Johnson is Vice President of Human Resources at Nelson. Read more about Lisa on our Nelson Team Page.