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Can Employers In California Still Test for Marijuana?

Recreational marijuana sales in California started in January, causing many employers in the state to re-evaluate their substance-abuse and drug-testing policies. But the rules governing marijuana and the workplace haven’t really changed … yet.

Employers should note that they don’t have to tolerate on-the-job marijuana consumption or intoxication. They should think about recreational marijuana like alcohol, said Walter Stella, an attorney with Miller Law Group in San Francisco. He was speaking at the California State Council of the Society for Human Resource Management (CalSHRM) 2018 California State Legislative & HR Conference in Sacramento.

California provides a constitutional right to privacy—which restricts employers from monitoring off-duty conduct. Pre-employment drug testing, however, is generally permitted as long as it is conducted in a fair and consistent manner and administered to all applicants who are applying for a position within a specific job class, Stella said.

In the hiring process, employers are allowed to test for illegal drugs at the applicant stage—though it is unclear if marijuana is “illegal,” since it is permitted under state law but remains illegal under federal law.

Stella noted that it is safer to administer pre-employment drug tests only after a conditional job offer has been made. [Read more at SHRM]

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