“…[I]t shall be lawful under state and local law… for persons 21 years of age or older to… possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams… [or] eight grams of cannabis in the form of concentrated cannabis….[or] [to grow] not more than six living cannabis plants… [and to] smoke or ingest cannabis…”[1]

We are frequently asked what California Medical and Adult Use Cannabis Regulation and Safety Act (MAUCRSA) means for employers and employees in the workplace. Proposition 64 guaranteed the right of every adult in California to use and possess cannabis, and to grow up to six cannabis plants for personal use. It also set up the framework for a robust commercial marketplace for cannabis sales, starting on January 1, 2018.

What it didn’t do, however, is require employers to allow cannabis consumption or possession on the job or at all. The rights and obligations of public and private employers to maintain a drug and alcohol free workplace are unchanged. The federal Drug-Free Workplace Act of 1988 (DFWA) and the California Drug Free Workplace Act of 1990 (CDFWA) require employers directly involved in work on government contracts or grants to adopt drug-free workplace policies.

The DFWA and CDFWA only applies to those employees directly involved in the government contract or grant work. Even if not required by law, employers may maintain policies prohibiting the use of controlled substances, like cannabis, on the job by employees and conduct drug tests of employees and applicants. Neither the Americans with Disabilities Act nor California’s Fair Employment and Housing Act require an employer to reasonably accommodate employees’ medical cannabis use.[2] The ADA doesn’t apply to cannabis use, yet, since cannabis is still scheduled as a Controlled Substance.

This raises a few common issues; specifically, drug testing and overall workplace safety.

Drug testing

California law does not require that employers administer drug tests, either before or during employment. However, many employers have drug testing policies in place as part of an existing alcohol and substance abuse policy.

Standards for cannabis use have not been developed because scientific data showing a correlation between levels of consumption and degree of impairment is not available[3].  In other words, while there are (arguably disputed) data showing that a blood alcohol level of .08 constitutes driving a vehicle while impaired, a similar benchmark for cannabis is lacking. This is due to the disparate impact of cannabis consumption on the human body, and to the complexity of the plant’s chemical makeup[4].

Most current drug tests provide results showing only the presence of the metabolite THC-COOH, rather than THC (delta-9-tetrahydrocannabinol), the psychoactive component of cannabis. There is also no ability to determine when the cannabis was consumed, since cannabis compounds can remain in the system for long periods of time. Thus, while a drug test may reveal the presence of cannabis, an employer has no ability to determine whether an employee was impaired at the time of the test, or whether they consumed cannabis over the weekend or on off-duty time, or whether the cannabis impacted the employee’s ability to perform their duties in any way.

For employers who currently engage in drug testing, a variety of decisions should be made. First, should you continue testing, or testing for cannabis? Recognizing that a large portion of the adult population in California uses cannabis in one form or another, employers must make the decision whether and how cannabis use impacts their particular workplace.

Is the employee’s use of cannabis posing a health or safety risk to employees or the public? If there is an impact, the employer should ensure that their drug testing policy is justified by a legitimate business interest in order to outweigh employees’ constitutionally protected right to privacy.[5] If a valued employee tests positive for cannabis use, what should you do with those results?

Drug testing itself is also under pressure from the Department of Labor. In an October, 2016 memo, the department signaled that post-incident drug testing may become a basis for claims of discrimination and retaliatory firing[6].

As an example, consider a workplace accident involving a crane operator. The crane malfunctions, injuring two employees, but leaving the operator unharmed. The employer decides to drug test both injured employees, the operator, and the employee who reported the incident- an innocent bystander. If the bystander’s drug test reveals the presence of cannabis, can the employer lawfully terminate their employment? Did that employee’s use of cannabis lead to the injury? Clearly not.

But in the instance where the crane operator’s test reveals cannabis, the analysis is murkier. Perhaps the operator uses cannabis for pain relief, or for anxiety, and her use of cannabis makes her better able to perform the functions of her job. Perhaps the injured employees violated company safety protocols, and their actions led to the injury. Did the employee’s use of cannabis lead to the injury?

Employers with drug testing policies must ensure their policy is supported by a legitimate business interest. Employees may be terminated based upon a positive drug test result but employers should be careful to consider the risks involved, including claims of discrimination or retaliation that may result from such a termination.

Workplace safety

Another issue raised frequently relates to the obligations of cannabis companies to their employees. California’s Labor Code requires employers to furnish a safe and healthful workplace.[7] The Department of Labor and CalOSHA have declined to issue industry-specific workplace safety regulations, concluding that existing Title 8 regulations, such as Injury and Illness Prevention Programs (IIPP), Hazard Communication and Heat Illness Prevention Standards, already apply to the industry.[8]

Some workplaces are at a greater risk than others. Thus, cannabis employers must weigh their obligations carefully based on the operations of their business. Cultivators with outdoor gardens must provide training regarding heat illness, fresh water, cool-down rest breaks and access to shade, and develop a heat illness prevention plan.[9] . Indoor cultivators need to be aware of repetitive motion injuries, exposure to CO2 and carbon monoxide, as well as exposure to fertilizer and nutrient hazards.

However, one area that may merit further inquiry by the department is workplace safety related to the potential for violence due to cannabis’ cash-heavy operations. CalOSHA already requires employers to perform an initial assessment to identify workplace security factors, the results of which could obligate the employer to incorporate workplace security and procedures to respond to a security hazard into its IIPP. Cannabis employers should ensure their IIPP is in compliance with these guidelines. CalOSHA has a model program available for free on their website.

In sum, California’s new legal cannabis marketplace has little to no effect on the rights of non-cannabis industry employers and employees, but employers should carefully analyze their policies relating to drug testing. California’s cannabis market creates many new considerations for cannabis industry companies and their employees including workplace safety and consumption. Industry employers should consult with an experienced cannabis and employment law attorney when developing workplace policies.

[1] Health & Safety Code §11362.1(a).

[2] Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal. 4th 920.

[3] See, however, Hartman RL, Huestis MA. Cannabis Effects on Driving Skills. Clinical chemistry. 2013;59(3):10.1373/clinchem.2012.194381. doi:10.1373/clinchem.2012.194381 showing increased likelihood of motor vehicle accidents following the consumption of cannabis, and Ramaekers, JG and Berghaus, G. “Dose related risk of motor vehicle crashes after cannabis use.” Drug Alcohol Depend.2004 Feb 7; 73(2): 109-19.

[4] See, e.g., Hartman and Huestis.

[5] See Loder v. City of Glendale (1997) 14 Cal. 4th 846, 898.

[6] 29 C.F.R. 1904.35. October 19, 2016.

[7] Cal. Labor Code §6400.

[8] Memo, J. Sum and E. Berg, Cal/OSHA, June 2, 2017.

[9] 8 C.C.R. §3395.