January 16th, 2018 | Debbie Lamb, Sterling Talent Solutions

Impact of the California Marijuana Law on the Workplace

The start of the New Year brings new laws, guidelines and recommendations. One of the biggest law changes and the one getting quite a lot of publicity is the legalization of recreational use of marijuana in the state of California. Marijuana is considered Schedule I drug under federal law and prohibited by the Controlled Substances Act. A 2008 California Supreme Court decision upheld employers’ right to enforce anti-drug policies and reject candidates who test positive for medical marijuana use. Just a few days after the California law went into effect, the US Department of Justice announced that it will rescind an Obama administration more lenient position on marijuana which had discouraged federal prosecutors from bringing charges in states where substance was made legal under state law. It is unknown if there will be a stronger federal crackdown on those taking part in the recreational cannabis industry.

The voters in 29 states have approved the medical use of marijuana with many more states having pending legislation. California is the sixth state to allow recreational use of marijuana after Colorado, Washington, Oregon, Alaska and Nevada. Massachusetts will allow the retail selling of marijuana on July 1, 2018. Maine has approved the recreational use as well, but there is no date set to start selling it on a retail level.

Impact of California Marijuana Law on the Workplace

It is important for both employers and employees to understand that the legalization of marijuana law in California does not impact employers’ rights to maintain and enforce drug-free workplace policies and drug testing policies. According to the California employment law firm, Carothers, DiSanti and Freudenberger, “The new law expressly states that it should not be construed or interpreted to restrict the rights and obligations of public and private employers to maintain a drug and alcohol-free workplace or prevent employers from complying with state or federal law. Employers who wish to maintain such policies should ensure that their policies make clear that prohibited drug use extends to all drugs prohibited by federal law, including marijuana — even in states where medical and/or recreational use has been legalized.”

Impact of Marijuana on Workplace Productivity

Regular use of marijuana compromises the ability to learn, focus and remember information as well as decrease motivation to accomplish tasks, even after the high is over. The National Council on Alcoholism and Drug Dependence (NCADD) has stated that marijuana use can cause: inconsistent work quality, poor concentration and lack of focus, increased absenteeism, carelessness, mistakes or errors in judgement, disregard for safety for self and others: on-the-job and off-the-job accidents, extended lunch periods and early departures and driver accidents. There have been many statistics about the impact of drug use in the workplace. In one report, The U.S. Department of Labor found:

• Drug users are absent from work an average of five days a month due to drug use
• Drug and alcohol abuse in the workspace cause 65% of on-the-job accidents
• Substance abusers use three times the normal level of employee health benefits and incur 300% higher medical costs
• Substance abusers are ten times more likely to steal from the company or other employees

Employee drug testing is a single data point in the assessment of an employee or candidate and an integral part of candidate and employee assessment. Testing increases the stability in worker productivity, decreases absenteeism, reduces employee turnover and can help a company avoid liability for negligent hiring penalties.

Updated Drug Testing Policies

Companies should have their drug testing policies reviewed and updated for 2018, especially with the changes in the marijuana law. The policy must be clear in its description of prohibited behaviors, drug testing (how, when and for what), consequences for policy violations, the definition of “under the influence” and be ready to take measures based on actions rather than drug test results. It makes sense to ensure that your company’s drug testing policies protect your organization to suit your needs. Companies who promote a drug-free environment will need to review their policy with legal counsel, consistently apply drug testing policies across all candidates and employees and consider the health and safety of all workers in the application of the predetermined drug screening policy.

For more information about how legalized the medical and personal use of marijuana can impact employers, listen to the OnDemand version of the 2017 webinar, HR in the Stone Age: Marijuana and the Law. You can also learn the importance of having an updated drug screening policy in our white paper, “Marijuana Legalization: Why It’s High Time You Reviewed Your Company’s Drug Policy.”

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.