Compliance/Best Practices Employment Law Legal Topics New Legal Developments

Marijuana Legalization: What’s on the Horizon for California Employers?

ThinkstockPhotos-511371716The following is a guest blog post from Gina Roccanova. Ms. Roccanova is a Principal at Meyers Nave and Chair of the Labor and Employment Practice Group, where she serves public and private clients with nearly 20 years of experience in negotiations, counseling, litigation, arbitration, and training.

With political backing from Lt. Governor Gavin Newsom, financial support from Sean Parker, and a significant coalition of pro-legalization groups, the Adult Use of Marijuana Act (AUMA) is likely to appear on the California ballot in November. According to numerous polls, a wide majority of voters support the initiative. If it passes, adults age 21 and over will have the right to possess, use, and grow limited amounts of marijuana for personal, recreational use. What does this mean for California employers? The answer depends on a situation that’s increasingly familiar in today’s world: employers will have to balance the pros and cons inherent in following the regulatory status quo against responding to changing societal views.

The AUMA initiative explicitly maintains the right of employers to maintain a drug-free workplace and doesn’t require accommodation of “the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace.” This language preserves and clarifies the status quo under existing state law, called the Compassionate Use Act.

But as the regulatory landscape continues to evolve and social tolerance of off-duty, recreational use of marijuana increases, employers could suddenly find themselves “behind the times.” Looking ahead, employers might begin evaluating the possibility of (1) treating recreational marijuana more like alcohol  and (2) treating medical marijuana like prescription drugs that have similar side effects. (At least for those employees who aren’t covered by federal requirements such as those promulgated by the Department of Transportation, which essentially has a “no-tolerance” policy.)

Employers may also need to take a closer look at their testing protocols. Here again, AUMA won’t affect the status quo, i.e., employers will retain their current rights to require pre-employment reasonable suspicion and post-accident testing. But some employees may resist such testing, or may shun employers that require it.

In addition, simply measuring levels of THC (the active component of marijuana) or its metabolites in the body is a notoriously inaccurate method of determining whether an employee is actually impaired. Unlike alcohol, for which there is widespread consensus that certain concentrations (generally 0.08% blood alcohol level or above) presumptively indicate impairment, there’s no similar “presumptively impaired” threshold for marijuana. As the National Highway Traffic Safety Administration states: “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects.”

This means that an employee may be impaired by levels of THC that are undetectable. On the other hand, a urine test may show the presence of THC although the employee’s performance may not be impaired. These scientific limitations, more than any legal changes, may move employers in the direction of focusing more on an employee’s actual job performance and less on scientifically debated medical tests or standards. Indeed, appropriate job performance may not trigger the need for an employer to ponder whether or not an employee might have ingested marijuana.

The bottom line is that employers may have to think more creatively about the realities of marijuana use and its effect in the workplace if the AUMA initiative passes.

On employer drug testing generally and the Compassionate Use Act, turn to CEB’s Advising California Employers and Employees §§13.59-13.69A. And for coverage of the legal issues arising from state marijuana legalization and its conflicts with federal law, check out CEB Marijuana Law hub.

Other CEBblog™ posts you may find interesting:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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