[This is a guest post by Evelin Y. Bailey.]

Employers in the medical marijuana industry have a right, like all California employers, to maintain a drug-free workplace. For example, Prop 64, which made it legal for individuals to use and grow marijuana for personal use, contains clear and specific language allowing California employers to develop or maintain drug-free workplace policies. Prop 64’s workplace policy provision applies whether or not the employee is using marijuana for medical or non-medical reasons. There is no legal requirement that an employer, including one in the cannabis industry, accommodate the use or possession of marijuana in the workplace.

California Law Does Not Protect Employee Use of Marijuana

Employees should be aware that despite the increased acceptance of medical marijuana, no law (including California’s Compassionate Use Act or Medical Cannabis Regulation and Safety Act) protects an employee’s use of medical marijuana when such use impacts work performance or violates the employer’s drug-free policies. The California Supreme Court has found that employers have legitimate interests in not employing persons who use illegal drugs because such use results in increased absenteeism from work, diminished productivity, greater health costs, and increased problems with respect to safety in the workplace. Under California law, an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions.

Drug Testing Policies

California’s constitution guarantees an individual’s right to privacy, which makes it challenging for employers to adopt drug-testing policies. Generally, an employer has no legal right to perform a drug test unless there is evidence that an employee may be working below par or endangering the safety of others because of substance abuse (i.e., legal or illegal drug use). The law requires a balance of an employee’s expectation of privacy against the employer’s business-motivated reason for wanting to know information about an employee. In California, drug testing is possible during the pre-employment (application) screening, as part of a physical exam, under reasonable suspicion, following an on-the-job accident or as part of a random test. In the cannabis industry, an employer may want to test trimmers and growers, depending on the type of equipment used, to ensure people in these positions are able to operate their equipment in a safe manner.

Alternatives to Drug Testing

Employers can adopt a policy for no use, possession or sale of drugs or alcohol at work or on the premises and may enforce that policy through disciplinary action up to and including termination. An employer also has the right to judge an employee’s fitness for duty and work performance. Whether the employee is unfit to work due to fatigue, illness, being under the influence of drugs or alcohol or some other reason, the employer has the right to determine whether that employee should work. The employee’s appearance, behavior, judgment, motor skills and responses may present observable signs about whether the employee is fit to work. An employer may also discipline employees based on work performance alone, such as when employees miss work, arrive to work late, perform poorly or display erratic behavior.

Protected Time Off to Participate in a Rehab Program

Note that under California law, an employer who has more than 25 employees must provide time off work to an employee for the purpose of entering and participating in an alcohol or drug rehabilitation program. The employer must also protect the employee’s privacy when it accommodates an employee’s leave of absence for the purpose of participating in the rehab program. An employer does not need to provide this time off with pay, except that an employee may use accrued paid sick leave.

It is recommended that employers consult a human resources professional or employment attorney when developing drug testing programs and drug-free policies.