What Can Employers Do Now that Marijuana Use is Legal in California?
Cannabis legalization has thrown California employers and HR departments into a mire of complicated questions about office weed policies. Can California employers maintain drug free policies in light of legal marijuana? How do changing attitudes toward recreational drug use impact businesses? What can employers do to maintain safety and a drug free workplace? If you (or your boss) are asking any of these questions, it’s time to find answers. Make plans to join presenters Leonora “Lenny” Schloss or Emilia Arutunian at a PIHRA 2020 Legal Update (SOLD OUT) near you!
Lenny and Emilia will provide takeaways such as:
- Legal cannabis use and its impact on employee hiring
- Whether legal marijuana use means you have to allow your employees to be high on the job
- Lawful policies for a drug free workplace
- Drug testing – what employers can and can’t do
- Whether employers must offer leave or reasonably accommodate employees who use cannabis
Lenny and Emilia’s session “What Can Employers Do Now that Marijuana Use is Legal in California?” will inform and entertain. More importantly, business owners and HR pros will gain practical tools to navigate business implications of legal marijuana in California. In order to dive deeper into this topic with Emilia and Lenny, Baskaran Ambalavanan interviewed the presenters themselves. Read on to learn more about this tricky topic and what you can expect at the PIHRA 2020 Legal Update.
Speaker Spotlight: Leonora “Lenny” Schloss and Emilia Arutunian, Jackson Lewis P.C.
Special thanks to contributing writer and PIHRA Programs Chair, Baskaran Ambalavanan. Baskaran conducted this interview with PIHRA 2020 Legal Update speakers Leonora “Lenny” Schloss and Emilia Arutunian. Lenny will be presenting at the PIHRA 2020 Legal Update in Riverside and Burbank, and Emilia will be presenting in La Jolla and Anaheim.
PIHRA: Marijuana use is now legal. How can California employers maintain effective, legally enforceable drug-free policies?
Lenny Schloss and Emilia Arutunian: Now that recreational marijuana use is legal in California, employers should implement and strictly enforce substance abuse policies. These policies can legally prohibit employees from using or being under the influence of marijuana, including medical marijuana at work. The policies should clearly state that employees are prohibited from being impaired by marijuana. Furthermore, the policies should provide direction to employees and supervisors and assist employees in understanding that activity which is legal under state law may not prevent them from losing their jobs.
We recommend employers delay implementation for 30 days to give employees who choose to use the opportunity to leave. If the employer policy includes testing, it should clearly describe covered drugs and that these are prohibited by state or federal law and describe any applicable exceptions for properly used prescribed or over-the counter medication which do not impair work. Furthermore, if the policy includes testing, it should detail the means of drug testing, testing procedures, and verification of results.
Lastly, the policy should describe means the employer will take to protect employee privacy and medical confidentiality and include an employee acknowledgement of the policy, with an authorization to test.
How is legal Cannabis use impacting hiring and at work as it is related to injury, workers compensation claims etc.?
Lenny Schloss and Emilia Arutunian: As the law currently stands, the legalization of Cannabis use should not impact hiring and work of employees in the workplace. Employers are allowed to continue to prohibit use of marijuana, including medical marijuana at work. Employers can continue drug testing of new hires and of employees under reasonable suspicion of marijuana use. Furthermore, employers are not required to accommodate marijuana use, medical or otherwise. Proposition 64 upholds the right of an employer to maintain a drug free workplace, including a prohibition on marijuana.
We note, the legalization of Cannabis is relatively new, and as this phenomenon becomes more widely socially accepted and new cases come out, the framework of the law may adapt accordingly.
Can CA employers do drug testing for hiring or reasonable suspicion? What they should avoid doing?
Lenny Schloss and Emilia Arutunian: The California law on drug testing is perhaps the most unsettled of any state’s drug- testing law. California drug-testing restrictions are based on judicial decisions balancing employers’ rights to test against employees’ state constitutional right to privacy. In California, employee drug testing programs are regulated primarily by the privacy provision of the state constitution. Unlike most constitutional provisions, California’s protection extends not only to the activities of government but also to private employers. Drug and alcohol testing programs clearly implicate individual privacy rights for both public and private employees. See Hills v. National Collegiate Athletic Ass’n, 7 Cal.4th 1 (1994).
However, this does not mean that testing is unlawful. An employer is legally allowed to conduct pre-employment drug testing. Drug testing during employment can be done as part of a physical examination, or if there is reasonable suspicion of use.
How does reasonable accommodation for cannabis-using employees work?
Lenny Schloss and Emilia Arutunian: California employers are not required to provide an accommodation for marijuana use or medical marijuana use. If, however, an employee wants to take time off to participate in a drug rehabilitation program, all employers regularly employing 25 or more employees must accommodate the employee as long as the reasonable accommodation does not impose an undue hardship on the employer.
Why are you excited to present at the PIHRA 2020 Legal Update?
Lenny Schloss and Emilia Arutunian: Jackson Lewis P.C. is a proud sponsor of PIHRA and is in line with its mission, to engage, elevate and serve the California human resource community. To the extent we can, we would like to share our knowledge and inform the California human resource community of the ever-changing California laws and what employers, through their human resources departments, can do to effectively attempt to avoid claims and lawsuits and focus on running, managing and operating their businesses smoothly and efficiently.