Episode 10: Marijuana and the Workplace

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Calchamber Executive Vice President and General Counsel. With me today is Jennifer Shah, an expert in employment law and founding partner of the Shah Law Group. Today we are going to be talking about pot in the workplace.

I can't wait.

Well then, let's get started. So Jennifer, pot in the workplace has been a hot topic for years. Yes. And I think though that it's become even a bigger topic in light of California legalizing recreational use of marijuana.

Yes. Proposition 64 certainly opened the field, if you will, in terms of people using marijuana recreationally. There are a number of restrictions, of course, but not that many. And the initial sort of thought, I think was people were focused on this recreational use and not thinking about how it could affect the workplace. But the recreational use has had a profound impact on recruiting and retention of employees.

Yeah, so you know, we have, the economy is booming right now, but as a result the market is extremely tight. And I'm hearing more and more reports, reading more and more articles about how drug testing and its impact on recruiting has started to really impact the ability of employers to find candidates.

Yes. Because of course the employer is thinking, look, I've always done drug testing. Now they drug test for pot or THC or whatever the testing company's gonna be looking for, and they find that a significant number of applicants are testing positive. Now obviously there are differences among the generations in terms of what percentage of people are testing positively. But even people in the so called baby bone regeneration, there are a significant number of them who are testing positive. And of course the their thought is this is legal activity, so why could I be dinged in the workplace for this? But there's a very important California Supreme Court case which my partner Greg Valenza worked on that is really clear that just because somebody could use it even for a disability related issue does not mean that they can come to work under the influence or even test positive.

So Jen, in California, even though marijuana use is legal for recreational and medicinal purposes, and we've had the medicinal right for several years, the law didn't change an employer's ability to maintain a drug and alcohol free workplace and conduct pre employment drug testing.

That's exactly right. And they can continue doing what they have done for years and years and years, which is list the chemicals that will be tested for the drugs that will be tested for and they can exclude applicants. Now remember, we're talking about pre employment testing and also reasonable suspicion testing in the workplace.

Well, let, okay, so as lawyers we know there are two separate and distinct. So let's tease it out for our audience. So pre employment drug testing. Go.

So pre employment is when you test applicants, you have to test applicants in the same position. So in other words, I can't just look at you and say, hmm, she might be using, I better test her. If you have some job classification or position, you test everybody in that position. So that's pre employment. So that's you apply. And as a term and condition of your employment, you have to successfully pass the background check or the drug test.

Okay, and if I fail? If it shows that I test positive for whatever that list of drugs might be, including marijuana and all of the varying forms of marijuana.

Yes.

Then what can happen?

Then you're out. We do not have to hire you.

Even though it's legal?

Even though it's legal, even if you have a Prop 215 card, which is the medicinal marijuana, even if you're using in full compliance with Proposition 64.

Okay, so that's pre employment stage. Now let's talk about you hire me, and maybe I'm driving a forklift and I'm a little erratic and I've got my bag of Doritos and my eyes are red and I'm smelling of something other than tobacco.

Yes.

Can you just go test me then?

Well, here's the thing. You can test, but you have to have some procedures in place for reasonable suspicion testing. So first you need to have a policy, because one of the things we have in California is a right to privacy. And this is privacy right that comes from our California Constitution. A lot of other states don't have it. So the idea when you have a privacy right is you're balancing the employer's interest and the applicant or employee's privacy interest. So the way we sort of deal with the privacy interest is we say we're going to test you, or we may test you if we have reasonable suspicion. That's going to diminish your right to privacy. Okay, so then we go in and we say, look, we've trained people how to recognize reasonable suspicion. By the way, we don't have to be right, we just have to have reasonable suspicion and we can test you. Now the other option is we don't have to test you. We can just decide, hmm, Doritos, erratic driving, red eyes, we have a good faith reason to believe you're under the influence, you're violating our drug free workplace policy, you're out. We can do it either way. But you do have to have some procedures in place. And so a lot of employers will call us at the last minute and say, oh, I think this guy is stoned, I better test him.

And.

And I'm like, no, no, I did your handbook. You didn't want a reasonable suspicion policy or training. So we can't do that. Right. Let's just list the symptoms and why you think there's reasonable suspicion and you can make a decision based on that.

So really good things for employers to be aware of. Okay, so turning back to where we started and the tight employment market, hiring being difficult. You know, I understand the law of employers are either no longer testing for marijuana or when those negative tests come back, they're ignoring.

And I understand it, I really do, because there are a lot of very well qualified candidates who are not gonna be accepted because they're gonna test positive. Here's the problem though. I'm using marijuana, you decide not to test me or you test me and you overlook my result. Now I get in an accident and I kill somebody. I'm driving to the bank and I'm under the influence, which of course pot lasts a lot longer than alcohol does. There's no sort of comparison. Although people like to compare alcohol and potential, the research doesn't support that. There really are much more long term effects. And so I get in an accident as a result of the accident. I'm at the er, they will test me. Now I test positive. Now it comes out that you ignored the results or you chose not to test me. That is a problem for the employer. Now it's obviously much worse if you tested me and ignored the result than if you just decided I'm not testing at all. But if you're gonna drug test and you're gonna exempt or exclude marijuana or THC or any of those other chemical compounds, you open yourself up argument. And this is not hypothetical. I've got a case right now where an employer had a truck driver got in a terrible accident, there were fatalities, he tested positive for pot, and he's not a large enough truck driver. Where they were subject to the DOT requirements. Department of Transportation, which of course has mandatory testing. Yes, but they're going to have a problem.

Yeah, yeah, because you know, I hear a lot. We get a lot of questions on the helpline. There's a lot of confusion with legalization. And you know, the thing that we always say is if you have a drug and alcohol free workplace policy, you have the right to conduct this pre employment testing. But you got to adhere to your policy. You've got to decide yes. This is what we're going to do. And not turn a blind eye to a test result that's not in your favor, even though you really like this candidate.

Right. And I think it's important for employers to take a step back and think about why were we testing in the first place. This is not a moral judgment.

Yes.

If people want to use recreational marijuana. Look, I went to UC Santa Cruz. I mean, come on. Okay, I mean, I get it. But what I think is so important is for employers to realize there are consequences. And I really do think it's different than alcohol. Now, certainly somebody who has an alcohol problem where maybe they're coming to work hungover or they're using it lunch, or they've got it in their water bottle at their desk. Big issue for sure. But when you think about whether or not you really want these candidates, you have to look at the research about the impact and the effect, particularly if you have someone who's using. It doesn't even have to be something as big as a forklift or dry a dot truck. It can even be somebody who's just using hand tools or equipment. You're not going to react as quickly. You're not going to necessarily have that exacting sort of approach. And of course, it depends on who you are. Pot can affect different people different ways. So I'm not here to judge at all. I just think employers have to really think about the consequences and the impact.

I agree.

Look, I've been there where you're looking for the best employee and you can't find them. But every time I rush and I get that person, I regret it.

I think that's well said and well taken. And certainly a point that we were trying to make by choosing a topic such as this is there's a lot of fake news, quote unquote, about it. And I think, too, for those employees out there, applicants, they need to be aware as well, as far as what the employers can do and what steps that the applicants can take to perhaps better chance their ability to pass these drug tests and still get that job.

Well, I think that's right. There are consequences to things we do in the world.

Yes.

And I think people really need to understand that. You know, we talk to kids now about social media posts. You know, you can't get rid of them. What you say on your Facebook page is gonna be on your Facebook page, or somebody's liked it, so it's gonna continue into the ether. It's the same thing with this drug testing. You gotta know that you may be tested for this. And so, you know, you have to make a responsible choice. Somebody said to me on the phone the other day when, well, they're not old enough to make that choice, Jen. I'm like, well, then they're not old enough to smoke. I don't know what to tell you, but if you're really gonna say that they're not old enough or mature enough to make the decision, then why are we letting them use the substance?

Yeah. And you know, to that point, one of the things that we always state in our seminars is let the applicant know that you do pre employment drug testing. Help them out a little bit.

Well, and weed them out. Save yourself 10.

No pun intended.

Thank you. I didn't even think about that. But yes, you know, save yourself the 10 bucks of testing and the drama you have in trying to explain it. If you tell people, number one, you deal with the privacy, right? So you're telling them up front. Number two, look, get rid of the people who aren't gonna pass, right? It's a waste of your time. If you're really committed to that being your process and your procedure, get rid of them.

Well, there we go. Well, on that note, thank you, Jen, so much. Yet again, another huge and important topic. And I know there'll be many more.

Thank you so much for having me. It's always my honor and privilege.

Thank you and thanks to our audience for listening to the Workplace. Please comment, subscribe and share Cal chambers podcast@calchamber.com.