Drug use in California can cause headaches for employers.  Balancing employee privacy interests against safety concerns forces employers to make tough choices with little guidance.  Legal drug testing of existing employees is so limited that most drug use won’t be detected until after an accident.  With increasing support for legal medical marijuana, many employers have struggled to determine how to respond to applicants and employees who test positive.  Now, with recent case law and the FEHC’s final regulations, employers finally have the support they need.

A Puff of History on Legalized Medical Marijuana  In 1996, California legalized prescription medical marijuana use. It did not, however, address use in the employment context.  California employers had no guidance as to whether or to what extent an employee who tested positive had to be accommodated. 

This left two main questions:

• Does an employee with a “medical marijuana card” get a pass if he or she fails a drug test because in that context it’s no longer considered an “illegal drug?”
• Does the fact an employee uses the drug to treat a potentially disabling condition make allowing the use of medical marijuana a “reasonable accommodation?” 

In 2003, the California Legislature added more smoke by saying the Compassionate Use Act does not require any accommodation of medical marijuana use on the property or premises of any place of employment or during the hours of employment.  This implied that an employer must not interfere with an individual’s use of medical marijuana beyond working hours and off the employer’s premises.  Thus, hypothetically, if Joe the forklift operator got stoned in his car right before work to dull his arthritis pain, it was not clear whether his employer could do anything about it.

The Courts Weigh In  Employees got a buzz kill in 2008, when the California Supreme Court concluded in Ross v. Ragingwire that an employer could deny employment based on an individual’s off-duty, off-premises use of marijuana without violating California’s Fair Employment and Housing Act (FEHA) or the constitutional right to privacy.  The Ragingwire employee had his offer rescinded after he failed a drug test, but he had a prescription for marijuana.  He claimed disability discrimination for failing to reasonably accommodate him, but the Court rejected it, concluding that the Act doesn’t limit an employer’s right to enforce its policies regarding failing a drug test, even when the drug is legal (in California) medical marijuana.  It is important to remember that, notwithstanding the Act, all marijuana use is still illegal under federal law. 

Legislative and Regulatory Reaction  Many predicted the Legislature would step in to protect employees using medical marijuana.  In fact, several bills suggesting employment protections similar to those for other prescription drugs died in session. 

Then, in one of its last acts before being dissolved in December 2012, the Fair Employment & Housing Commission added to the discussion by inserting the following language into the new disability regulations: 
                        An applicant or employee who currently engages in the use of
                        illegal drugs or uses medical marijuana is not protected as a
                        qualified individual under the FEHA when the employer acts on
                        the basis of such use, and questions about current illegal drug use
                        are not disability-related questions. 

With that emphatic statement by a binding rule-making authority, employers now can feel confident in denying employment to applicants who test positive for marijuana, even with a prescription.

What about the underlying condition?  It gets tricky, though, when the smoker explains positive test results by mentioning a medical condition that led to the marijuana use.  The employer could still choose not to hire the applicant, or to fire the employee.  However, this decision would be the least risky when the employer applies a zero tolerance policy for marijuana use across the board, and when the position is safety-sensitive (like operating machinery).  The key is to make sure that decisions are made based only on the drug test results, and not on the underlying medical condition.  But, depending on the circumstances, the employer may want to explore other options.  For example, if an applicant for an office job fails a drug test due to off-duty medical marijuana treatment for cancer, the employer may decide to hire anyway — the job is not safety-sensitive and there would be a risk of being sued for discriminating on the basis of the medical condition (cancer) if the applicant were not hired. 

Workplace Solutions When the position is safety sensitive or the company wants its policy to be absolutely zero tolerance, we recommend reviewing to ensure the policy is clear and states that failure of a post-offer drug test will lead to rescinding of that offer.  However, if the policy is more lax and the position is not safety sensitive, consider the impact of accommodating some use if it is to treat a protected medical condition and does not impact the work. 

Also, be mindful that many employees assume if they have a medical marijuana card, they can use without restriction.  Train managers to spot the symptoms of drug use so if employees are working under the influence, the proper steps can be taken.