California became the first state to legalize medicinal marijuana in 1996, and 20 years later became one of the few states to legalize recreational marijuana. The resulting societal shift in cannabis use and its acceptance has complicated the regulation of cannabis in the workplace. Proposition 64—which legalized the recreational use of marijuana in California—expressly recognizes an employer's right to "maintain a drug- and alcohol-free workplace" and to have "policies prohibiting the use of marijuana by employees and prospective employees." Thus, cannabis is often likened to alcohol; although consumption of alcohol is legal for those over the age of 21, employers may prohibit drinking during work hours and discipline any employee who comes to work intoxicated. But unlike tests for alcohol, there is no way to test whether a person is currently impaired from marijuana use. In fact, a regular user may test positive for marijuana weeks after the individual last used the drug. So when may employers test employees for marijuana? When should an employer test?

Employer's Ability to Screen for Cannabis Use

Proposition 64 does not prohibit or limit an employer's ability to test for marijuana use. In California, employer drug testing programs are limited by the state's constitutional right to privacy. Although employment drug testing programs implicate this privacy right, they are not necessarily improper. Instead a program is judged on a case-to-case basis using a "reasonableness" balancing test that weighs the gravity of intrusion on an employee's privacy versus the validity of the employer's reason for the drug testing. California courts recognize that current employees, who have a work history the employer may use to evaluate their performance, have a stronger privacy claim than applicants.

California courts have upheld an employer's right to conduct "suspicionless" pre-employment drug testing. Best practices for a pre-employment drug testing policy include:

• A test that applies to all applicants in similar positions, and that does not single out certain applicants based on protected characteristics such as race or disability.
• A requirement that applicants receive prior notice of the drug test.
• A test that is conducted by medical personnel in a private environment.
• A requirement that the applicant's medical information and test results are not provided to the employer. Instead, employers receive a "suitability rating" thath does not disclose which part of the test the applicant failed.
• A test that is given to an applicant after a real job offer has been made (i.e., the employer has evaluated all nonmedical matters, such as, background checks and reference checks) and before the commencement of job duties.

Despite the legalization of cannabis in California, an employer maintains the right to refuse to hire an applicant who tests positive for marijuana, even if the drug is legally prescribed for a disability. However, because of the increase in recreational use of cannabis and the corresponding uptick in applicants who are testing positive for marijuana, employers in some industries are having a hard time finding qualified applicants who can pass a drug screen.  Thus, some employers are moving away from pre-employment screening for marijuana for positions that are not safety-sensitive.

As for testing current employees, employers may require an employee to undergo a drug test as long as it is based on reasonable suspicion backed by objective and legally sound facts. According to the U.S. Court of Appeals for the Ninth Circuit, reasonable suspicion may be based on the following factors:

• A pattern of abnormal conduct or erratic behavior;
• Observable phenomena such as the smell of marijuana, red eyes or a distant gaze;
• An arrest or conviction for a drug-related offense while employed;
• Information from reliable sources or information independently corroborated; or
• Evidence that an employee tampered with a previous drug test.

Random drug testing of current employees is highly controversial, and courts have upheld random testing only for very safety-sensitive positions. Some federal authorities require California employers to establish a controlled substances and alcohol testing program that includes random testing. Unless you are required to randomly test or to have employees in very safety-sensitive positions, it is not advisable to randomly test for drugs. And some localities in California, such as San Francisco, have ordinances that prohibit employers from randomly testing employees for drugs except in limited circumstances.

No Duty to Accommodate Medicinal Use of Cannabis

Although California employers have no duty to accommodate medicinal use of marijuana in the workplace, employers should tread carefully. While an employer may act adversely against an employee for his illegal drug use—which is not protected under the ADA—the employer may not subject the employee to an adverse action because of the underlying disability.

It is unclear whether California will join the movement to require employers to provide reasonable accommodations to medical cannabis users. During the 2017-2018 California legislative session, a bill was proposed that would have provided that the medical use of cannabis by a qualified patient with an identification card is subject to a reasonable accommodation by an employer. The bill would not have prohibited an employer from firing or refusing to hire a person if it "would cause the employer to lose a monetary or licensing-related benefit under federal law or regulations." The bill also would not have prevented an employer from firing, or disciplining, an employee who was impaired during work hours because of marijuana use. The bill did not make it out of committee, and it has not been re-introduced as a new bill.

Employers Should Evaluate and Update Their Policies

With the legalization of recreational marijuana, now is the time for employers to re-evaluate their substance-abuse and drug-testing policies to be sure they align with the company's position on marijuana use. Policies should be updated to expressly identify marijuana as a prohibited substance, rather than reference "illegal drugs," which may no longer encompass marijuana. Employers should also develop reasonable suspicion checklists, and train managers on impairment signs and what to do if they suspect an employee is under the influence of marijuana at work.

Hilary Weddell is a partner with law firm McManis Faulkner in San Jose. She may be reached at [email protected].