Note: This post was updated August 21, 2017 to reflect amendments to the bill.

Earlier this year, California Assemblyman Jim Cooper, D-Elk Grove, introduced AB 1700 which seeks to amend the Business and Professions Code.  The original intent of the bill was to increase the cannabis worker’s knowledge on basic environmental and safety precautions, and sexual harassment and discrimination protections.  The July 2017 draft of the bill focuses more on safety than sexual harassment and discrimination prevention training.  The bill applies to an applicant for a state license under California’s cannabis regulations. Assuming there is no collective bargaining agreement, the applicant must provide a statement that the applicant employs, or will employ within one year of receiving a license, an employee who has successfully completed a federal Occupational Safety and Health Administration (“OSHA”) 10-hour general industry course.

Overview

The bill first proposed a 30-hour Cal-OSHA course to address sexual harassment and discrimination prevention training to improve industry concerns uncovered by the national media and local press that revealed widespread “instances of sexual abuse and human trafficking in every aspect of the marijuana economic supply chain.” Simply stated, the goal of AB 1700 is to increase cannabis worker safety knowledge and compliance which legislators believe can be accomplished through a 10-hour federal OSHA general industry course.

One concern pertaining to this bill is that this one “trained employee” would have no responsibility to train others within the company. In addition, this person would not necessarily benefit from the majority of the safety training offered in the 10-hour course, unless he or she happens to work in certain sectors of cannabis manufacturing or distribution.

One of the policy recommendations is to make the bill more narrowly tailored to require more appropriate training to the exact nature of the employee’s responsibilities. Another recommendation is to expand the scope to either require some percentage of all licensee’s employees to take such a course or to require a supervisor-level course be taken by supervisors who are responsible for enforcing workplace conditions.

Other Laws Aimed to Prevent Harassment in the Workplace

Note that the current version of AB 1700 does not include any requirements specific to sexual harassment and discrimination prevention.  However, California law already requires employers in all industries to take affirmative, reasonable steps to prevent and correct discriminatory and harassing conduct. For example, AB 1825 requires a supervisor to provide at least 2 hours of training regarding sexual harassment once every two years. For more information regarding your obligations as a California employer, visit the Fair Employment and Housing Act’s(FEHA) website and download the DFEH-185 brochure on sexual harassment.

[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.