With nearly half of the United States taking steps to legalize marijuana use, employers need to determine how to react to these new laws.  For instance, in the state of Washington, a worker was initially fired for the use of marijuana, but then regained his position, according to a recent story by NBCNews.com.  I recommend that California employers have a marijuana policy; however, before implementing one, you need to understand current laws regarding marijuana use.

While Colorado and Washington are the only states where possession and use of marijuana for recreational use is legal under state law, California merely decriminalized marijuana possession.  Despite state laws, the possession and use of any amount of marijuana is illegal under federal law because marijuana is classified as a Schedule I drug under the Controlled Substances Act.  This Federal law applies in California.  Marijuana is not fully legal in the same way that tobacco is legal.

Because of these new laws, people who live in California think it is a good idea to report to work stoned.  See what bad choices drugs cause?  It is NOT a good idea.

Marijuana may be equated to alcohol in the workplace. Employees are not permitted to work drunk, drink alcohol at work, or return from lunch drunk, so employees should not be permitted to work high either.  For that reason alone, I strongly urge all California employers to revise the wording of their drug-use policies to expressly specify marijuana.

For employers who want to tighten up policies and create a safer and more productive workplace, here are some things to consider when creating a marijuana policy:

1. Create a policy addressing the consequences of an employee’s marijuana use, just like the policy for the use of alcohol or drugs that are illegal.  Most employers will want to prohibit the consumption of marijuana at the workplace, on company time or at the organization’s functions. For example, if an employee arrives to work under the influence of marijuana or his or her work suffers because of its use, the employer would reserve the right to take disciplinary action against the employee.

Be careful, though, since certain states prohibit discharging, penalizing or refusing to hire lawful medical marijuana users based upon a positive drug test for marijuana unless the employee used, possessed or was impaired by marijuana while on the employer’s premises or during work hours.  You must also prove that the employee was under the influence of marijuana while at work.

Further, if an employee has a valid prescription for medical marijuana, evaluate the employee on a performance basis, as in his/her effectiveness in performing assigned duties.  Don’t just use a drug test, as testing would be pointless.

2. Don’t completely prohibit the use of marijuana at all times.  Employers should ask whether they really need to have special marijuana policies that go beyond ensuring a drug-free workplace.  In other words, don’t create a policy that prohibits employees from using marijuana when they’re off the clock. Instead, focus on regulating on-the-job conduct and employee performance.

3. Be sure to include marijuana in any drug-testing policy, but bear in mind that California limits drug testing to five narrowly defined circumstances:

•   During pre-employment screening

•   As part of a physical examination

•   Under reasonable suspicion

•   During post-accident testing

•   As a part of random testing (good luck here as California limits the legality of random testing severely)

If you want to test your employees, I highly recommend that you seek legal counsel before doing so, since the employer’s ability to test – even in these 5 situations – is extremely limited.

4. When creating a marijuana policy, focus on safety, especially if you have employees who drive or who operate heavy machinery (and that does not include the office copier).  Employees who are under the influence of any substance at work can pose a danger to themselves, to co-workers and to customers and the public, and employers will want to make sure they do not put those folks in danger. If an employee’s job involves driving, heights, explosives, dangerous machinery or any other situation where the employee’s safety, or the safety of others would be detrimentally affected if the employee is high, then marijuana use should not be tolerated, regardless of the state law on usage.

Isn’t it great to be an employer in California??

 

This Blog post is provided as an educational service by the Law and Mediation Offices of Jil Dalesandro for clients and friends of the firm. This post is an overview only, is not a solicitation, and should not be construed as legal advice or advice to take any specific action.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.