Does Legalized Marijuana Impact Workplace Policies?
With recreational marijuana now legal in California, many employers are wondering how this impacts their drug free workplace policies and their response to an applicant/employee drug test that is positive for marijuana. Contrary to what many employees likely will believe, the new law does not restrict employers' rights to continue enforcing policies that prohibit marijuana use. The new law expressly states that 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;
- require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace;
- affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees; or
- prevent employers from complying with state or federal law.
Under federal law, marijuana remains a Schedule I drug that is prohibited under the Controlled Substances Act, and the California Supreme Court held in 2008 (Ross v. RagingWire) that an employer lawfully may enforce a policy of refusing to hire an applicant who tests positive for marijuana—even if the employee was using the marijuana for medical purposes as permitted under California law. The expanded legalization of marijuana for recreational use in California does not change the legal analysis. Because marijuana remains illegal under federal law (and in most states), employers are entitled to continue maintaining policies prohibiting the use of drugs classified as illegal under federal law and to enforce those policies equally as to applicants and employees regardless of whether the applicant/employee is in California.
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 though medical and/or recreational marijuana has been legalized in California.
Multistate employers should also measure their policies against the marijuana-related laws of other specific states (other than California) where they employ workers.