Anti-discriminatory laws make policies 'tricky' for employers, says lawyer, ahead of new rules taking effect
With a new workplace marijuana law just months away in California, it’s time for employers to brush up on what they need to know about how to test for marijuana in the workplace.
And stakes are higher than ever – as HRD reported in May, stats have shown that post-workplace-accident THC tests are bringing back peak positive results.
The law, AB-2188, takes effect Jan. 1, 2024. It prohibits discrimination against an employee for use of recreational marijuana outside of the workplace, or for a drug test result showing nonpsychoactive cannabis metabolites – the chemical byproduct of marijuana use that can remain in the body for up to 30 days in some people.
This law will make an already complicated matter even more “tricky”, says Grant Pecor, partner at Barnes & Thornburg LLP, as employers will have to walk the line between testing for safety and not being discriminatory.
“You want to be proactive and avoid the accidents, so you want to seek testing from people who have given you reason to believe they may be under the influence in the workplace,” Pecor told HRD.
“But you don't want to have a wholesale prohibition against anyone who's using, either under a medical card or recreationally, particularly in those states where there are discrimination laws in place.”
When can employers test for marijuana in the workplace?
As there are so many varying laws and statutes across the country, it can be complicated for employers and HR directors to manage workplace marijuana rules, says Pecor, especially if a company has employees in different states or jurisdictions.
Even cities can have different rules than their states; San Francisco, for example, has its own ordinance around workplace testing. For this reason HR should be aware of employee locations and what the local rules allow them to do, says Pecor.
In California, employers are legally allowed to administer “suspicionless” pre-employment drug tests as a condition of employment, after they have been hired, but before they begin work.
But when AB-2188 is in effect, HR leaders will have to think twice when administering these rules; when looking for a rule of thumb, err on the side of safety, Pecor says.
“Particularly in states where recreational marijuana use is legal, I recommend most of my clients treat it like alcohol, and limit your testing to circumstances when you have a reason to believe that it's impacting the workplace,” said Pecor.
“But also, communicate with your employees. What you don't want is somebody thinking they're fine coming to work with their judgment impaired or their ability to respond to an issue impaired, and they get in an accident with a piece of heavy machinery or something worse.”
Marijuana in the workplace a growing safety issue
According to the report released by Quest Analytics, a drug-testing company in the U.S., there has been a steady increase in employee post-accident positive test results for marijuana since 2012, reaching a 25-year peak in 2022.
Pecor advises using “reasonable suspicion” as a rule, such as somebody who has slurred speech, glassy eyes, or an odor on them that might indicate recent use.
“Frankly, the occurrence of an accident can be sufficient to indicate somebody's been under the influence, because accidents aren't a normal part of the workplace, and if somebody makes a bad choice, sometimes that's evidence that there's something else going on, that could have impaired their judgment.”
AB-2188 and most relative laws across the country ensure that employers do have the right to test employees when there are safety concerns or when intoxication is suspected, and employees can be fired for intoxication on the job. California employers also have the right to maintain a drug-free workplace policy under the Health and Safety Code, the bill states.
Shifting attitudes and safety a balancing act for HR
Worker shortages have led to employers relaxing hiring rules around marijuana use, Pecor says. Plus, employers are realizing that many people are using marijuana responsibly and not causing accidents.
However, HR professionals need to be careful about being too lenient about marijuana use, not only at work but outside of it as well.
Safety and enforcement are factors HR professionals need to remain focused on, he says. If policies are in place but not enforced, they will not be taken seriously. Communicating the rules clearly and enforcing them, while also being cognizant of the growing prevalence of marijuana use and anti-discrimination laws, will be challenging for HR.
“It's so new, it's just a lack of understanding. Some employees don't understand what is or is not prohibited,” he said.
“Balancing that, and protecting your workplace is the key. Not only knowing the laws, but then also recognizing that the workforce as a whole is changing. And as an employer, you need to figure out how you're going to change with it.”