Seyfarth Shaw – With New York joining in last year, nearly half the country has laws permitting state residents to use marijuana for medical purposes, and a handful even permit recreational use. California led the movement when it passed the so-called “Compassionate Use Act” in 1996. At present, use and distribution of marijuana remain federal offenses, although unenforced per current U.S. Department of Justice policy.
The increasing accessibility of marijuana over the years, as well as its acceptance into mainstream culture, have led to serious misconceptions regarding its permissibility in the workplace. We offer here a few reminders to help clear up this this sometimes “hazy” area of California law.
- I can weed out marijuana users in the job application process, right? Wrong. With few exceptions for certain industries, public and private California employers may not require job applicants to disclose information concerning an arrest that did not result in a conviction or their referral to or participation in a pretrial or post-trial diversion program. Marijuana convictions older than two years are expressly off limits, as well as an applicant’s criminal history that has been expunged, sealed or dismissed. None of this criminal information may be considered in making employment decisions. Some California cities, such as San Francisco and Richmond, prohibit private employers from asking about conviction history altogether on an application via so-called “Ban The Box” laws, or until after the first live interview and the employer has determined that the applicant meets job qualifications. Significant civil and criminal penalties, in addition to attorney’s fees and costs, may serve as a major buzzkill for violating employers.
- How about background checks to smoke out users? Employers conducting criminal background checks and considering recent marijuana convictions must be mindful of federal and state discrimination laws. Criminal background check polices that disparately impact protected groups of employees will be heavily scrutinized by the Equal Employment and Opportunity Commission and the California Department of Fair Employment and Housing. Using third-party vendors to screen job applicants and employees on the other hand triggers complex rules under the federal Fair Credit and Reporting Act and California’s more stringent counterpart. This is a smoking hot area for litigation as class action lawsuits in recent years challenge both approaches to employer background checks.
- One toke over the line? Drug tests and positive results. In California, once a job offer has been made, employers can require job applicants to pass a drug test as a condition of employment, so long as all prospective employees are subject to the same requirement. Drug tests performed after the person has been hired are essentially prohibited without a reasonable suspicion that the worker is under the influence (certain transportation and safety-sensitive jobs have looser restrictions for when one can test), or pursuant to a narrowly-drafted post-accident testing policy. In the event of a positive test, California employers have wide discretion to decline to hire, to discipline and even to terminate employment regardless of whether the individual has a medical marijuana card due to an underlying medical condition. Neither federal nor California law prohibit making employment decisions based on marijuana use and so it is a legitimate basis to terminate. Additionally, while businesses must engage in a good faith interactive process with all disabled employees, employers are not obligated to permit continued marijuana use as a reasonable accommodation. The legality of marijuana use for medical purposes in California does not change the analysis.
The 411 on California’s “420” Laws. Employers have substantial rights with respect to keeping marijuana out of the workplace. California’s legislative endorsement of marijuana as a treatment option for certain conditions does not tie the hands of management if there is a positive test. However, marijuana-related arrests not leading to conviction and old convictions cannot be thrown into the pot when making hiring, firing and other employment decisions.
Proposed workplace solution. As marijuana use for medical purposes has become much more prevalent in California, this is an excellent time for employers to assess their written policies, job applications, background check procedures, and interview materials—especially nationwide companies using form documents—to ensure compliance with California law, where the grass is not always greener.