Now that recreational and medical marijuana are legal in California, employees and employers have questions about how to “work” with cannabis.
Employees wonder if they can lose their job if a drug test reveals tetrahydrocannabinol (THC) in their system. Employers wonder if they’re still allowed to test employees for cannabis, and terminate them if they test positive.
Like most topics in the cannabis world, definitive answers are hard to come by. However, we found a few guidelines, which should help clarify how you can plan for workplace drug testing and what protections you may have.
Prop 64’s authors inserted provisions into the bill to “allow public and private employers to enact and enforce workplace policies pertaining to marijuana.” This means individual employers are free to create testing policies that are a good fit for their business. So just because Prop 64 made recreational cannabis legal, it doesn’t mean that employers are barred from testing their employees for cannabis—and applying whatever consequences they choose.
Whether you use cannabis recreationally or to assist with a medical condition, Prop 64 is clear: Bosses have the final say on whether employees can consume cannabis. Currently, employers aren’t obliged to treat medical cannabis patients any differently than recreational cannabis consumers.
Prop 64 states that “Neither federal nor state law prohibits employers from disciplining or terminating employees for marijuana use, even when the drug is used to treat a disability in accordance with California’s medical marijuana law.” So not only can employers test for cannabis in your system, they can fire you for testing positive or for appearing “high” or impaired—whether or not you have a medical marijuana card.
California’s Constitution guarantees residents the right to privacy. For most workers, legal experts suggest there must be a demonstrable reason to drug test an employee in good standing, such as a work-related accident. And employers must honor your right to privacy in how drug tests are administered, why they are administered, and how the results are reported and documented.
For those who work in high-risk, public-safety professions, chances are you’ll always be subject to random drug testing. And employees who work in federally funded workplaces will most likely continue to contend with zero-tolerance policies for the foreseeable future.
Your unique metabolism affects how long cannabis remains in your system. What you eat, how much you exercise and the level of fat you carry all affect how quickly marijuana is metabolized. There’s currently no test that can determine when you last consumed cannabis or exactly how much cannabis is in your system, making a positive cannabis test even more of a headache for employers.
Cannabis drug tests do just one thing: They confirm the presence of cannabis in your system. It’s then up to your employer to determine what the next step should be.
Though there’s no hard and fast rule, one Harvard study and another designed to assist drug courts arrived at almost the same conclusions: Most people who abstain for about one month will pass a urinalysis test. Occasional or new users of cannabis often produce clean urine in less than one week. Many companies still require pre-employment drug tests. If you’re a jobseeker, your best bet is to abstain for a minimum of 30 days prior to testing.
Several factors are prompting employers to take a more measured approach to the once-standard, zero-tolerance workplace drug policies adopted during the War on Drugs in the 1980s.
Pre-employment cannabis screenings are being shown to eliminate eligible employees in an already tight labor market. One manager at a national grocery chain told HelloMD that cannabis use no longer disqualifies potential new hires.
“I recently interviewed a job applicant who lost his job at another grocery chain when he failed a drug test. He said he used cannabis occasionally to reduce stress. For our company, his honesty and his transferable work experience were more important to us than his cannabis use,” she explained.
Increasingly, employers like the Raley’s grocery chain have finessed their pre-employment drug testing requirements, requiring mandatory pre-employment drug screening for positions like pharmacists and truck drivers, but not for cashiers and baggers.
Drug testing is expensive. At $30 to $50 per test, many employers can no longer justify the expense. Times have changed, and employers are less concerned about responsible employees who are cannabis consumers working in low-risk positions. More and more businesses are updating HR policies and focusing drug-testing programs on the detection of more harmful recreational drugs and prescription medications.
Many employers take a "don't ask, don't tell” approach. And some ask employees who test positive for cannabis to work with an employee assistance program. It’s in your best interest to inquire about your company’s cannabis policies so you don’t have any surprises down the road.
Eleven states have already legislated medical cannabis patient protections—California isn’t one of them.
But two California lawmakers, Assemblyman Rob Bonta (D-Oakland) and Assemblyman Bill Quirk (D-Hayward) don’t think you should be forced to choose between your job or your medical cannabis use. If passed, Assembly Bill 2069 would “prohibit an employer from engaging in employment discrimination against a person on the basis of his or her status as, or positive drug test for cannabis by, a qualified patient or person with an identification card.” Were AB 2069 to go through, it would add the words “medical condition” to the state’s definition of its anti-discrimination code.
In the workplace, medical cannabis patients are no different than recreational users. Anyone can be fired for coming to work impaired or for failing a drug test.
The state Constitution’s right to privacy offers some protections. Generally, employers must have “reasonable suspicion” that you are impaired in order to initiate a random drug test.
Jobseekers should be prepared to take pre-employment drug tests. Research shows regular cannabis consumers may pass a urine screening after about 30 days’ abstinence.
Workers in certain professions and those employed by businesses receiving federal contracts should expect continued random drug screening.
If passed, Assembly Bill 2069 will add “medical conditions” to the state’s list of persons and conditions protected from discrimination.
Photo credit: Steven Depolo