California employers long have long availed themselves of their right – as affirmed by the state’s high court – to carry out zero tolerance policies against workers who use drugs – even if that drug use takes place off-the-job. That means many companies require new applicants to pass a drug screen before they start and employees (so long as it’s totally random or the company has some reason to suspect drugs are being used on-the-job). This was true even here in California, where medical marijuana has been legal since 1996 and even with the passage of Prop. 64 that legalized recreational use.
We could see this changing, especially because part because the California Supreme Court’s ruling in Ross v. Ragingwire Telecommunications (one of the most recent to address this issue) was predicated at least partially on the fact that the U.S. Supreme Court had affirmed challenges to the federal law in part because deemed marijuana dangerous Schedule I drug. Recently, the U.S. Attorney General said he’d favor a new bill protecting cannabis businesses and users from federal prosecution as long as they were in compliance with federal law. This measure has broad bipartisan support, as does another that would shield banks doing business with these companies from federal money laundering charges.
It’s not clear either measure would necessitate de-scheduling the drug, but doing so likely impact legal precedent in numerous areas of law – including employment and its zero tolerance. for drugs.
The History of Employer Zero Tolerance Policies
The policy gained its first real foothold in 1986, when then-President Ronald Reagan signed an executive order requiring all federal employees to refrain from any use of illegal drugs as a condition of employment. That included by on duty and off.
Two years after that, federal lawmakers passed the Drug-Free Workplace America Act, which allowed mandatory drug-testing of employees AND government contractors, citing safety concerns. This was with the exception of the postal service certain units of the legislative and judicial branches.
Those measures only applied to federal employees, but local and state decision-makers adopted similar programs under state laws and implemented zero-tolerance programs for drug-free workplaces.
As Los Angeles cannabis employment law attorneys know, there is nothing in the U.S. Constitution that bans this, and in subsequent case law, various limitations were imposed to ensure the government wasn’t acting in a manner that was discriminatory or in violation of a person’s constitutional rights to be protected against unlawful searches.
California Employers’ Shifting Stance on Worker Pot Use
Since the advent of legalized marijuana, positive drug tests rates of climbed. They rose 10 percent last year, to reach about 2.3 percent. Rates were higher in states where marijuana is legal.
Meanwhile, the state’s unemployment rate has grown to 4 percent, meaning companies have to stay competitive if they want the best worker. Establishing a provision that we recognize at this point to be arbitrary could exclude a wide range of qualified workers. It would be akin to testing new applicants on whether they consumed alcohol the previous week (which we can’t, because alcohol is processed through the body at a faster pace.
When billionaire CEOs are smoking marijuana on air for a laugh, it garners a bit less credence to the opposing side.
The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 714-937-2050.
National Treasury Employees Union v. U.S. Customs Service, 1989, U.S. Supreme Court
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50k Los Angeles Marijuana Convictions to be Dismissed, Reduced, April 1, 2019, Los Angeles California Cannabis Lawyer Blog