May 07, 2017
California Employers’ Guide to Marijuana and the Workplace
May 07, 2017
By Sean B. Gibbons
As perhaps the most visible state involved in the growing trend toward the legalization of marijuana, California has often served as a crucible for challenges to the conventional application of drug laws in the context of employment. With the approval of Proposition 64 (the “Control, Regulate and Tax Adult Use of Marijuana Act” or “AUMA”), a person cannot be subject to arrest or prosecution under California law for the possession, cultivation, and use of certain amounts of marijuana for “nonmedical” purposes. While this is touted as an eventual boon for the state’s tax coffers and an immediate relief for recreational users, the AUMA’s effect on California employers seems less clear. Now that an individual is not subject to arrest for the possession or use of marijuana, can that individual expect the same tolerance from an employer?
Employee Marijuana Use Is Still Grounds for Termination
The manufacture, distribution or possession of marijuana remains a criminal offense under federal law; marijuana remains a “Schedule I controlled substance” under the federal Controlled Substances Act (“CSA”). Given Congress’s stated purpose in enacting the CSA, the CSA preempts California marijuana law. 21 U.S.C. § 801 et seq.; Gonzales v. Raich, 545 U.S. 1 (2005). Moreover, Section 11 of the AUMA specifically provides that “no provision or provisions of this Act shall be interpreted or construed in a manner to create a positive conflict with federal law, including the federal Controlled Substances Act[.]” Therefore, the AUMA has no effect on the enforceability of federal law, or the criminal nature of marijuana possession, cultivation, or use.
Likewise, no state law may invalidate employment policies that forbid marijuana possession or use by employees as long as it remains criminal under federal law. The seminal case addressing such policies is Ross v. Ragingwire Telecommunications, Inc., 42 Cal.4th 920 (9th Cir. 2008). Ross affirmed an employer’s ability to terminate an employee for marijuana use, despite the fact that the employee’s use was not criminal under California law. In Ross, the affected employee filed suit under the California Fair Employment and Housing Act (“FEHA”), claiming that because he possessed a physician’s recommendation to use medical marijuana to treat back spasms, his termination violated state law prohibitions against disability discrimination. The California Supreme Court upheld the validity of Ross’s termination, ruling that the Compassionate Use Act (which decriminalized the use of medical marijuana) does not contemplate the protection of an individual’s employment rights. Id. at 926. Furthermore, the court explicitly held what it had previously only implied in prior decisions - that the FEHA does not require employers to accommodate the use of illegal drugs. Id. Therefore, under Ross, an employer may freely terminate an employee for marijuana use, regardless of “medical necessity.”
Because federal law recognizes no difference between “recreational” and “medicinal” use of marijuana, the AUMA does not change the state of California employment law. Ross is still good law even after the passage of the AUMA. Furthermore, the AUMA specifically recognizes the rights and obligations of employers to maintain a drug-free workplace and to comply with federal marijuana law - including the right to forbid marijuana use by employees. See Health & Safety Code Section 11362.45 (f). However, employers who fail to anticipate a potential change in employee perspective with regard to marijuana use and who fail to account for the lack of difference (or who mistakenly account for a nonexistent difference) between “medicinal” and “recreational” marijuana use risk a number of potential pitfalls:
A Permissive Attitude toward Marijuana Carries Significant Risk
Employers merely seeking to “do the right thing” may inadvertently engage in discriminatory practices. An employer may, for example, terminate one employee for recreational use but decline to terminate an employee who uses marijuana for medical purposes. Because there is no distinction between the two under federal law, this employer will have essentially condoned a criminal act (under federal law) by one employee while punishing the other for the same act, risking a discrimination suit.
Employers who employ individuals in safety-sensitive positions such as vehicle drivers, operators of heavy machinery, armed employees, or employees engaged in particular dangerous practices such as demolition, are especially at risk should they decide to condone marijuana use in a misguided attempt to comply with state law. Because there is no viable means to determine whether an employee who tests positive for marijuana is under the influence at the time of the test, or merely used marijuana within the past twenty-eight days, there is no way to eliminate the possibility that the employee poses a risk to property, fellow employees, or the general public. An employer that retains an employee who tests positive for marijuana under these conditions incurs significant risk.
While public opinion continues to evolve, the possession and use of marijuana are still federal crimes, and an employer may properly terminate an individual who commits a federal crime. Both federal and state laws require employers contracting with governmental agencies to maintain a workplace free from drugs and certify that the workplace is drug-free. The federal and state drug-free workplace acts prohibit use of “controlled substances,” as defined under the federal Controlled Substances Act - which includes marijuana. Furthermore, the Trump Administration has indicated as recently as March 2017 that it will increase federal presence and enforcement of marijuana law and policy in states where marijuana is legal. Accordingly, it is likely that California public employers, employers who conduct interstate operations, and any employer receiving federal grant funding will be subject to scrutiny.
Well-Designed and Consistently Implemented Policies Mitigate Risk
If an employee tests positive for marijuana as the result of a drug test required incident to a motor vehicle or industrial accident, or a test ordered by a supervisor or a “trained observer” pursuant to employment rule or state regulation, that employee may be terminated. Additionally, an employer may choose to not hire a prospective employee who tests positive for marijuana during a pre-employment drug screening.
Given the relative public acceptance of marijuana use, employers are strongly advised to consult with qualified employment counsel, and to candidly assess the impact of marijuana use among the workforce on all aspects of their operation. Employers should ensure that they maintain written policies that forbid the use, possession or sale of drugs in the workplace and on company property as well as being under the influence of an illegal or controlled substance while on the job. All such policies should specifically mention marijuana and should address the AUMA and CUA and their inapplicability to the workplace. All supervisors and employees should be issued copies of the policy upon hire and should be required to sign an acknowledgement of receipt and agreement to abide by the policy. Similarly, any employee subject to pre-employment testing should be notified in writing that marijuana is a disqualifier for employment.
When implementing policies, employers and supervisors should beware of making any exceptions to the policy. Supervisors should be reminded of the serious nature of marijuana use, and trained to implement employer policy to the letter; any deviation from a written policy weakens the policy itself and creates potential liability for discrimination or wrongful termination lawsuits. Ultimately, an educated workforce is less likely to engage in improper conduct under the mistaken belief that it is acceptable, and properly educated supervisors are better prepared to answer employee inquiries and address violations of policy in a uniform and appropriate manner. Comprehensive written policies and an educated workforce serve to preemptively dispose of potential frivolous litigation and the cost inherent to the defense of such actions.
Sean Gibbons is a Senior Attorney at Richards, Watson and Gershon. He advises public and private sector employers throughout California on labor and employment policies and practices. He also represents employers in labor and employment litigation, arbitration, and collective bargaining negotiations. Mr. Gibbons has been honored as a Super Lawyers “Rising Star” five times in his nine years of practice.