Since election day, Ellen Komp of cannabis advocacy group California NORML said she’s received at least a dozen emails and calls from employees asking whether marijuana is now exempted from employer drug tests.
The closing line in almost every email response: “I wish I had better news.”
Recreational use of marijuana is now legal in California, but the new law states that employers still have the right to maintain a drug- and alcohol-free workplace and can keep policies that prohibit the use of cannabis by employees and prospective workers.
Employment lawyers say most companies they’ve spoken with plan to maintain their current drug screening procedures, which prohibit cannabis.
“The problem that California employers will have ... is you have a state law that allows uses for recreational purposes, but of course you still have the federal law that makes it illegal,” said Michael Kalt, partner at law firm Wilson Turner Kosmo and government affairs director for the state council of the Society for Human Resource Management organization.
Employer drug testing first gained steam during the Ronald Reagan administration, which required federal employees to get screened as part of the president’s campaign against drugs. Other employers soon followed.
A standard drug screening today for federal workers will test for five different substances — cocaine, amphetamines, PCP, opiates and marijuana, said Barry Sample, senior director of science and technology at Quest Diagnostics Employer Solutions, which handles drug testing for many employers.
But advocates and even drug-testing experts say marijuana poses unusual challenges for a job applicant. Marijuana can show up in urine or saliva tests several days after use, and those concentrations found aren’t necessarily indicative of usage patterns, Sample said. There’s also no clear consensus on how much marijuana is considered too much to drive safely.
“In the case of alcohol, we have a roadside test,” said Mark A.R. Kleiman, professor of public policy at New York University. “Not true for cannabis.”
Even medical marijuana, legal in California since 1996, is not exempted under employer drug testing policies. In 2008, the California Supreme Court ruled that because marijuana is still considered illegal under federal law, employers do not have to accommodate their employees’ medical marijuana use, even if it is during non-work hours.
California NORML, the cannabis advocacy group, is currently lobbying for legislation to change that, said Komp, the group’s deputy director.
“The situation is more extreme and urgent for medical patients who don’t have the option of using it or not,” she said.
Later, the group will push to exempt recreational marijuana use from employer drug screenings as well, Komp said.
Until then, employees should be familiar with their companies’ drug policies and not just assume that procedures have changed, said Tamar Todd, director of legal affairs at Drug Policy Alliance, an advocacy group and major backer of Proposition 64, which legalized recreational marijuana use in California.
Employment lawyers are telling companies to update their employee handbooks to clarify that drug screenings will still test for marijuana.
Companies in “safety-sensitive” transportation industries, such as trucking, as well as fields that deal with heavy machinery, like construction firms, are especially unlikely to loosen policies, as well as businesses that contract with the federal government, lawyers said.
Aerospace giant Boeing Co. said in a statement that its policies on marijuana usage are not affected by state laws that have legalized marijuana, citing its work with the government.
“As a federal contractor, The Boeing Company's Drug Free Workplace policy is based on federal standards which define marijuana as an illegal drug,” the company said. “Therefore use of marijuana by Boeing employees is prohibited.”
The company, which employs about 14,000 people in California, said it conducts pre-employment drug screenings and can also test employees after accidents, based on “reasonable suspicion” or randomly when it is required by Department of Transportation regulations or contract.
Boeing said it has not experienced “significant differences” in attracting or hiring job candidates in other locations where marijuana has been legalized, such as Washington. Boeing’s Commercial Airplanes division is based in Seattle.
But that has been a problem for some companies in pot-legal states.
Bob Funk, chief executive of staffing agency Express Employment Professionals, said finding skilled workers such as electricians and welders is already a nationwide problem and is further compounded by alcohol or marijuana tests.
Screening for marijuana has always been an issue, he said, but it has become “more acute because of the legalization of it.”
“We’re having a challenge finding those good people in those states,” Funk said.
Though Quest Diagnostics has gotten some inquiries from companies in Washington or Colorado that were interested in changing their employee drug tests, only a “handful” of those ended up doing so, Sample said.
One cannabis company in Colorado eliminated its drug policy all together. OpenVape once had a “boilerplate” human resources policy on drugs, though without any references to marijuana, said Chris Driessen, company president.
But after Colorado legalized recreational marijuana sales in 2014, OpenVape decided to take another look at its policy.
“It didn’t really reflect our values as a company,” Driessen said.
The company replaced it with a strict impairment policy, in which employees that are impaired in any way — whether that’s because of drugs, sickness or lack of sleep — are encouraged to go home and return when they’re rested.
“It does not vilify or demonize any form of drug use,” Driessen said. “If there continues to be an issue, then we certainly do address that and intervene, but we try in every way possible to intervene and reach out, than discipline and escalate the HR process.”
He said the company occasionally has had to step in and “bring people back into the flock,” but that there has not been a major disciplinary infraction.
Though it’s unlikely that all companies will eliminate drug policies, legal experts and advocates say loosened drug screening for marijuana is already happening in some industries.
“Certainly in California, there’s a recognition in some sectors that there are a lot of marijuana users … who are highly valued employees,” said Todd of the Drug Policy Alliance. “Employers have learned you’re going to really diminish your work pool if you toss those people aside [whose] job performance is not impacted” by cannabis use off the job.
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