Both medical and recreational use of marijuana by adults in California is now legal but that doesn't mean that employees don't have to go through drug testing for marijuana anymore. Employers can still require a job applicant to comply with a drug test before beginning employment. Once on the job however, employers – with the exception of those in certain industries – can generally only request that employees do a drug test under certain situations.
Medical Marijuana Use in California
In 1996, California voters passed Proposition 215, the Compassionate Use Act. Proposition 215 legalized the use of marijuana for medical purposes. The proposition gave patients suffering from certain medical conditions, as well as their caregivers, the right to have and grow marijuana upon a physician's recommendation that marijuana use would be beneficial for the patient.
Recreational Marijuana Use in California
In 2016, California's voters passed Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act. The proposition legalized the personal use, possession and growth of marijuana for recreational use for people over 21 years of age. Under the act, people over the age of 21 are allowed to possess up to an ounce of marijuana and to cultivate up to six marijuana plants on their property.
A Drug-Free Workplace
With the passage of Propositions 215 and 64, California enacted the Medicinal and Adult Use Cannabis Regulation and Safety Act (MAUCRSA) to provide a regulatory framework for the sale and use of medicinal and recreational marijuana within the state. The act contains language that specifically protects the rights of employers to maintain a drug-free workplace.
MAUCRSA states that nothing in Propositions 215 and 64 takes away "the rights and obligations of public and private employers to maintain a drug- and alcohol-free workplace...or affects the ability of employers to have policies prohibiting the use of cannabis by employees and prospective employees, or prevents employers from complying with state or federal law."
This means that employers can enact and maintain a drug-free workplace policy, including the prohibition of marijuana, despite any medical need. In some instances, employers are actually required to have policies in place that ensure drug-free workplaces. Under California's Drug-Free Workplace Act of 1990, employers who receive grants from, or contracts with, the state must confirm that they have a drug-free workplace. Additionally, the federal Drug-Free Workplace Act of 1988 requires employers who receive any federal grant or who have a federal contract for the procurement of property or services valued at $100,000 or more to provide a drug-free workplace.
State Law on Drug Testing of Job Applicants and Employees
Since current law allows employers the right to a drug-free workplace, employers can do drug testing of job applicants and use passage of the drug test as a condition of employment. This is called a suspicionless drug test. A suspicionless drug test can be requested after a job offer has been given but before the employee first starts to work.
Once an employee has started working, an employer's right to do a drug test is more limited. According to the California Chamber of Commerce, the drug testing cannot be done randomly, but only when there is reasonable suspicion from "specific objective facts and rational inferences drawn from those facts" of drug use.
There is no set definition for what can give rise to a reasonable suspicion of drug use. Signs of drug usage by an employee may include physical changes, such as unusual smells on the body and clothes, slurred speech and bloodshot eyes. Changes in work productivity and performance may also give rise to a reasonable suspicion of drug use. Generally, an employer can drug test an employee after a serious accident.
Read More: California Drug Testing Laws: Pre-Employment Drug Testing
Employer Workplace Drug Policies
To avoid any problems or confusions, the employer's workplace policy should state the company's entire drug policy, including when and how drug testing can be done. The policy should be in writing and given to employees at the beginning of employment. The California Chamber of Commerce has a set of guidelines to help employers create a clear, consistent and fair drug-free workplace policy.
Department of Transportation Drug Testing
Some employees in California are subject to more stringent drug testing. Employees who work in commercial transportation and safety-sensitive industries, which include the aviation, commercial motor, maritime, pipeline, railroad and transit industries, come under the U.S. Department of Justice's workplace drug and alcohol testing program. Under the Department of Justice's policy, these employees must not use drugs, including marijuana, while working and should not report for work if they have used drugs.
In addition to pre-employment drug testing and drug testing when there is reasonable suspicion of drug use, these employees can be subjected to random drug testing. Employees can also be subjected to drug testing when they return to their jobs after a leave of absence. Employees who refuse to comply with drug tests can be immediately removed from their job duties and face additional consequences based on their company's policies and/or employment agreements.
Drug Tests and Laboratories
There is no one drug test and laboratory that employers must use to test employees and potential employees. Employers may choose to test for drugs using urine, blood, hair or saliva tests. Employers are free to choose the laboratory they want to send samples to, and they pay for the costs of drug testing.
For employees that come under the Department of Justice's drug and alcohol testing program, the agency provides the guidelines for testing and handles the collection, testing and medical review of urine samples for drugs.
Local Ordinances on Drug Testing of Employees
Some cities in California have local ordinances that provide additional conditions on when employees can be drug tested. San Francisco is one such city. San Francisco's ordinance reiterates that an employer cannot do random drug testing of its employees nor can it require drug testing as a condition for continued employment. Under Article 33 of the San Francisco Police Code, employers must have "reasonable grounds" to believe that an employee is mentally and/or physically impaired on the job and that the impairment presents a clear and present danger to that employee, another employee or to the general public.
Then the employer has to provide the employee, at the employee's expense, the opportunity to have his drug sample tested or evaluated by a state licensed independent laboratory or testing facility. The employee must also be given the chance to explain or challenge the results. Lastly, the employer must ensure that the test only tests for substances that are likely to affect the employee's ability to safely perform his job duties.
The California Chamber of Commerce has information for employers on when drug and alcohol testing of employees is allowed and how to craft an employee handbook that addresses drug use and testing.
- California Chamber of Commerce: Medical Marijuana in the Workplace
- SF Public Defender: Prop 64 FAQs
- California Chamber of Commerce: Drug and Alcohol Testing
- CalChamber Alert: Employers Should Have Reasonable Suspicion for Drug Testing Workers
- California Normal: San Francisco Law on Employment Drug Testing
- US Department of Transportation: What Employees Need to Know About DOT Drug & Alcohol Testing
- California Department of Public Health: Legislation
Karen graduated from Southwestern Law School in 2003 with a Juris Doctor degree. She has worked for several law firms, providing legal services in various fields including immigration, housing, bankruptcy and family law.