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March 8, 2018
Bill could end employers’ zero-tolerance drug policies

According to employment law attorneys, a bill introduced in the state Assembly that seeks to make medical marijuana cardholders a protected class may cause legal difficulties for businesses when they write and try to enforce workplace anti-drug policies.

Assembly Bill 2069 was introduced on Feb. 7 by Rob Bonta, D-San Francisco, and Bill Quirk, D-Hayward. It would prohibit employers from discriminating against an employee for being a medical marijuana user or for failing a drug test as a result of that use.

The bill allows exceptions when the employee's status would cost the company federal benefits, or if the employee is impaired on the job from cannabis use.

"If they are clearly impaired, such as stumbling, and clearly exhibiting signs of intoxication, then the employer would be within their rights to at least send the employee home," said Charles O. Thompson of Polsinelli LLP, commenting on the text of the bill.

"If there is a repeated behavior, then we go back to the code and the employer would not be required to accommodate someone who is impaired on the job," he added.

However, it may not be that simple when it comes to proving marijuana use was to blame for the impairment, or in some jobs to tell whether the employee is truly impaired.

"It's going to be really difficult because the statute isn't too clear on what 'impaired' would mean. A positive drug test alone would likely not be enough to show someone is impaired," said Sheeva J. Ghassemi-Vanni of Fenwick & West LLP.

"Alcohol is often analogized when we look at this issue. There are different things that you can try to spot but it is not as obvious as smelling alcohol on the breath or someone tripping on themselves," she said.

According to Ghassemi-Vanni, another challenge of drug tests is their technical limitations. Marijuana can linger in the system, making it unclear when it was used and whether it was to blame for a workplace incident, she said.

Ghassemi-Vanni said that additional evidence needed to fire someone for marijuana impairment under AB 2069 could be multiple corroborating witnesses and clear indicators that work was subpar.

"To further complicate that, in California, there are very specific rules about when you can administrate a drug test of the drug itself. You can't just necessarily do it randomly," she said.

Thompson said that while the bill protects medical marijuana users, it does not stop employers from firing or not hiring someone who simply cannot perform essential duties.

"It doesn't stop an employer from saying, 'We can't accommodate you because you're using cannabinoids.' For example, nobody's going to be doing construction with a pot card," he said.

Ghassemi-Vanni said that should the bill pass, it would render zero-tolerance drug handbook policies impossible, due to the permanent exception for medical marijuana users. Handbooks articulating a policy against use, and that on-the-job impairment is unacceptable, are helpful, she said.

"Ideally, they have a handbook policy of some sort about the use of drugs and alcohol," she said. "I want to assure my clients they aren't totally hamstrung if someone showed up high. It's like if they showed up drunk."

Thompson added that an individualized approach to accommodating employees and their roles in a company will be important.

"The other part we don't want to lose sight of is the holistic approach to the individual. You have to look at a person and say, "How long can we continue to accommodate and keep you safe and keep the business safe?'" he said.

If the bill passes, it would supersede the controlling precedent issued by the state Supreme Court in Ross v. Ragingwire Telecommunications Inc. (2008) 42 Cal. 4th. In that case, the court ruled that an employee was not discriminated against when he was fired for failing a drug test, despite physician-recommended medical marijuana use.

Marijuana remains federally prohibited even as states such as California and Colorado legalize it not only for medical but for recreational use.

"[The bill] calls into question what is going to happen nationwide. It's really quite a high level of tension between state and federal law, and it causes employers concern because they're not always sure what to do," said Ghassemi-Vanni.