Cannabis, Drug Testing, and Workplace Rights in California
It is now enshrined in California law that the use of marijuana should be permitted while, at the same time, that employers need to provide safe workspaces that are generally drug and alcohol-free. There is tension in those concepts, which is rife for misunderstanding.
Changes in drug testing laws over the last few years to provide greater protections for the use of cannabis have deepened that misunderstanding, with those changes popularizing an impression that employees may freely use cannabis. That expansive interpretation is incorrect, and these laws’ effects are much more limited.
Under the newest laws, employers cannot test for “nonpsychoactive cannabis metabolites” and cannot discriminate based on an employee’s “use of cannabis off the job and away from the workplace.” (Cal. Gov. Code § 12954(a).) However, that law did not change the fact that employees are not permitted to use or possess cannabis or other drugs in the workplace and that employers must maintain a drug-free workplace. (Cal. Gov. Code § 12954(d) [“This section does not permit an employee to possess, to be impaired by, or to use, cannabis on the job, or affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace…”]). Those restrictions apply no matter the intended use of a substance, and there is no exception for medical marijuana. (Cal. Health & Safety Code § 11362.785, [“Employers are not obligated to accommodate any medical use of marijuana”]). An employee who is impaired by cannabis or other drugs at the workplace is permissibly disciplined or terminated.
As a result, the changes to drug testing are not substantial. In general, California is restrictive on when drug testing is allowed at all. While drug testing is permissible upon a job offer, an employer in most industries is not permitted to engage in regular or random drug testing once an employee starts work. An employer may engage in drug testing where they have a reasonable suspicion of impairment. That suspicion is a vague standard, but the most common situation is immediately after an accident or injury. Drug testing outside those boundaries may constitute an invasion of privacy, subjecting the employer to liability. (See, e.g., Kraslawsky v. Upper Deck Co. (1997) 56 Cal.App.4th 179, 185; Semore v. Pool (1990) 217 Cal.App.3d 1087, 1098). What is primarily being sought is evidence of impairment. The new statutes prohibit testing for “nonpsychoactive cannabis metabolites” – where testing is permitted, nothing prohibits including testing for indicators of current impairment – such as THC.
Further complications can arise when an employee’s use of substances becomes problematic or an employee appears addicted to a substance.
The most common situation that may arise is when an employee seeks to take time off for a rehabilitation program for drugs or alcohol. California includes laws that require accommodating an employee’s involvement in an alcohol or drug treatment program. (See, e.g., Cal. Labor Code § 1025, [“Every private employer… shall reasonably accommodate any employee who wishes to voluntarily enter and participate in an alcohol or drug rehabilitation program…”]). A reader might reasonably assume that this instruction, that an employer “shall reasonably accommodate,” would mean what it says. However, the Courts have determined that an employee does not have a right to pursue a claim for wrongful termination for conduct in violation of Cal. Labor Code § 1025 – no matter how clearly it contravenes the statute’s language. (See, e.g., Sullivan v. Delta Air Lines, Inc. (1997) 58 Cal.App.4th 938, 944). Unusual tensions like this appear in laws involving marijuana, as the State provides incremental protections, but is constrained by federal law and a lingering distaste for ‘drug use’.
Nonetheless, while that statute was rendered largely toothless, protections for the same conduct exist under separate laws. In California, the Fair Employment and Housing Act, commonly shortened as ‘FEHA,’ prohibits discrimination or other adverse employment decisions to be made on the basis of protected characteristics and requires that employers reasonably accommodate employees and their physical and mental disabilities. (Cal. Gov. Code § 12940). The scope of disabilities covered by FEHA is broad and expressly includes any disability that would be covered under the federal Americans with Disabilities Act, known as the ‘ADA.’ (Cal. Gov. Code § 12926(n)). The use of illegal drugs is not protected. (See, e.g., Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 926 [“The FEHA does not require employers to accommodate the use of illegal drugs”]). However, by incorporation of the ADA, treatment, and rehabilitation arising from the use and addiction to such drugs may be protected. For example, the ADA includes as disabilities various forms of addiction to legal drugs. (See, e.g., Mararri v. WCI Steel (6th Cir. 1997) 130 F.3d 1180, 1185 [“There is no dispute that alcoholism is a disability within the protection of the ADA”]). Moreover, guidance from the U.S. Department of Justice in the context of opioid abuse makes clear that rehabilitation may be protected. (U.S. Department of Justice Civil Rights Division: The ADA and the Opioid Crisis [“Does an individual in treatment or recovery from opioid use disorder have a disability under the ADA? Typically, yes, unless the individual is currently engaged in illegal drug use”]).
Problems may arise if an employee is impaired at work, not fired, and then enters treatment. A termination may be construed as termination for the impairment, which may be legal. Or the termination may be construed as termination for the rehabilitation and disability, which is undoubtedly illegal. Determining what is true is an exercise that involves extensive litigation expenses and overcoming various presumptions due to the timeline.
Tensions and confusion like the above will remain and be slowly ironed out. In the interim, it is highly recommended that you retain the services of an attorney to assist, as these matters depend on the details, and there are no guarantees. The most basic advice is that employees should not appear at work impaired or under the influence of cannabis or any other substance. Employers should not permit employees to work while impaired or under the influence. If there is a question of accommodating a disability, it is commonly a good idea to provide and utilize the State’s reasonable accommodation packet, available here: Request for Reasonable Accommodation Package.
