published on August 17, 2018 - 8:36 AM
Written by David Castellon

Thanks to proposition 64, the law legalizing recreational marijuana use in California, 2018 started out busy for Faith Driscoll.

As a Fresno lawyer specializing in employment law, as well as being the legislative director for the Society of Human Resource Management of Tulare/Kings County, she was busy fielding questions by business owners and human resources managers about how the new law might affect their workplace drug policies.

“There was a lot of confusion about what the new law would mean in the workplace,” with some employers wondering if they could continue mandating drug testing under their existing workplace rules and worries that employees found to have cannabis in their systems couldn’t be disciplined or terminated, Driscoll recounted.

Safety was a particular concern among businesses where workers operate trucks, forklifts and other heavy machinery, she said.

A lot of confusion

“I think there was a lot of confusion about what the law said and what it meant,” she said.

“The interesting thing about this proposition, when you started hearing potentially it was going to happen and that there was going to be the ability to smoke marijuana or ingest THC legally and recreationally that it would have a big impact on employers,” said Steve Crass, another Fresno employment lawyer who regularly runs seminars for employers on new laws affecting businesses, including Prop. 64.

“But the proposition, itself says that an employer doesn’t have to change its workplace policy, and, in fact, it can maintain its zero-tolerance policy that it had before.”

Not much impact

“The proposition, itself, doesn’t have much impact on employers, whatsoever,” at least in regards to their workplace drug polices, Crass said.

It wasn’t just employers who needed clarification, said Paul Bauer, another attorney specializing in employment law.

“What has changed is a perception by applicants and employees that have a mistaken belief that they can continue to use marijuana, and if they do test positive in the workplace — either through a pre-hire process or reasonable suspicion as an employee that if they test positive — that somehow the legalization has given them a free pass,” he said.

“It is unfortunate. Now that adult use of cannabis is legal, they think its absolutely legal,” added William Logan, a Three Rivers attorney who helped form California’s cannabis law who also specializes in representing defendants in cannabis-related cases. 

Not clear on the law

Earlier this year especially, Driscoll said, employers and human resources managers shared with her many cases of employees and job candidates who thought their employers couldn’t enforce their drug-free policies when it came to cannabis use.

Many of those workers are getting caught, as the number of work-related drug tests coming up positive for cannabis use in the Fresno area are going up, said Dominic Valdez, owner of the Workforce Drug Testing Center in Fresno.

He said operators of other drug-testing centers in the Valley have told him they’ve seen the same trend since the start of the year

Positive drug screenings

A report issued by Quest Diagnostics, the nation’s top provider of drug screenings, states from 2016 to 2017, marijuana-positivity tests conducted by Quest increased by less than 1 percent among general U.S. workers and among people in safety-sensitive jobs.

But the rise was more significant in two states that have allowed recreational marijuana use since 2016. Nevada and Massachusetts had marijuana-positive test increases of 43 and 14 percent, respectively, among the general workforce, and 39 and 11 percent among employees in safety-sensitive jobs.

The Quest researchers also noted that from 2016 to 2017, positive tests by California workers also increased to 11 percent by the general workforce to 20 percent among workers with safety-sensitive jobs.

The Quest report didn’t address a reason for the increased positive tests in California and whether users of medicinal marijuana products — which have been legal in California for more than two decades —played a role.

Testing “dirty” still a violation

Driscoll said she knows of two employers who had employees who “tested dirty” for marijuana use in their drug screenings.

“They said ‘you can’t terminate me for this because I use it for medicinal purposes.’”

Both people lost their jobs, as she and the other lawyers noted that such a claim was legally challenged long before Prop. 64 took effect, and the court ruled that workplace drug use rules supersede doctors’ recommendations.

Claiming such workplace rules against workers using medicinal cannabis violate the Americans with Disabilities Act doesn’t hold water in court either, said Driscoll, noting that’s a federal law, and the federal government still considers all marijuana use illegal.

Logan said he handled one unusual case of a pilot assigned to Lemoore Naval Air Station having marital problems that prompted his wife to bake marijuana into a coffee cake, serve it to him and then report to his command he was under the influence.

“He got dosed,” Logan said of his client, who ended up testing positive for marijuana and being drummed out of the Navy.

Off the clock

Regardless of why employees test positive, their continued employment might depend on whether they can convince their bosses that they smoked or ingested marijuana away from work, long before starting work, and they weren’t under the influence while doing their jobs.

Of course, that may apply only if a workplace drug policy allows the employer any discretion in how they discipline employees who fail drug screenings and not require automatic firings.

This actually is a worry for some businesses, particularly those with large numbers of workers who are regularly screened, because if a big percentage test positive for cannabis, having to fire or otherwise discipline so many people at once could drastically disrupt operations.

“Then what do you do?” Driscoll asked.

The lawyers said that workers and employers have generally gotten more clarity on the effects of the new law on businesses since the start of the year, but Crass suggested that employers still modify their written drug policies slightly to make clear the rules still apply to marijuana, while Driscoll said some businesses have altered their policies regarding marijuana use to allow medicinal or recreational use away from work.

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