What if an employee legally consumes marijuana outside of work, still has THC in his system and is involved in a workplace accident?
One of the hottest topics is the legalization of marijuana for adult (recreational) use. As you are probably aware, medical marijuana use has been allowed in the state of California for quite some time. However, recreational marijuana use remained illegal until this year. On Nov. 8, 2016, voters passed an initiative
that allows certain recreational marijuana use. That initiative went into effect on Jan. 1, 2018.
It allows adults age 21 and over to legally purchase and consume marijuana in the state without the need for a medical referral card. Adults 18-20 still need a medical referral card to legally purchase in the state. The locations where marijuana use is prohibited include public places, places where smoking or vaping is prohibited and workplaces that maintain a drug- and alcohol-free environment. The bill says the state government will: “Allow public and private employers to enact and enforce workplace policies pertaining to marijuana.” Additionally, marijuana remains an illegal Schedule I substance
under federal law, which employers must follow. This potentially means that employers can still drug test their employees, may refuse to hire those who use marijuana and may terminate employees who use marijuana (in the workplace or out) if it violates company policy. Therefore, based on the stated language in the bill, as well as federal law, employers with drug- and alcohol-free workplace policies may continue to maintain and enforce them in California.
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One issue, in particular, that has many clients concerned is the effect legalization will have on workplace accidents. To be clear, this law does not make it legal to drive, operate machinery or otherwise take part in dangerous activities while under the influence of marijuana. However, California has not yet adopted a standard measure for marijuana impairment analogous to blood alcohol testing. Currently, the tests for marijuana detect THC (the chemical compound found in cannabis responsible for a euphoric high) in a person’s system from anywhere from three days to three months. Employers face a dilemma if an employee legally consumes marijuana outside of work, is no longer “impaired” and then is involved in a workplace accident. The potential exists that a post-accident test could detect marijuana (THC) in the employee’s system without proving any actual impairment at the time of the accident. According to the law as written, the employer could terminate that employee for violation of an existing drug-free policy. Given the nature of the debate and the publicity that the legalization is receiving, it is reasonable to anticipate pushback and litigation from employees terminated in that type of scenario.
With these issues in mind, Heffernan Risk Management Division recommends that our clients regularly revisit and review their existing substance policy with a qualified labor and employment attorney to protect all their interests. If they do not have one, this is a great time to recommend that they enlist the services of an attorney to have them assist in drafting an adequate policy. Presumably, ancillary laws and standards will be developed by the state over the next few months that will direct employers how to deal with these new concerns a little more clearly. Until then, it is important for us to refer our clients to the experts most able to advise them during this time of uncertainty.