Navigating Cannabis in the Workplace: A Guide for California Corporations

Farella Braun + Martel LLP

Farella Braun + Martel LLP

The landscape surrounding cannabis in the workplace is rapidly evolving, posing challenges for California corporations and businesses to establish effective policies and procedures. As the use of cannabis, both medical and recreational, becomes more prevalent, it is crucial for human resource professionals to stay informed and adapt their strategies accordingly. In this article, we will delve into the key considerations and best practices for managing cannabis in the workplace.

Understanding Cannabis Derivatives

Cannabis contains two primary derivatives: THC (tetrahydrocannabinol) and CBD (cannabidiol). THC is psychoactive and can cause impairment, while CBD is non-psychoactive and typically does not lead to impairment. Hemp, a cannabis plant with CBD and minimal THC (no more than 0.3%), is also noteworthy.

The Federal Landscape

Currently, non-hemp cannabis is classified as a Schedule I controlled substance, making it illegal at the federal level. However, there have been discussions about reclassifying marijuana to Schedule III due to its potential medical benefits. Hemp, on the other hand, was removed from all schedules by the 2018 Farm Bill.

California’s Legislative Changes

In 2022, California enacted AB 1288, altering the landscape for employers. California’s Fair Employment and Housing Act (FEHA) now prohibits discrimination based on off-duty cannabis use and the presence of non-psychoactive cannabis metabolites in drug tests. Notably, this law does not apply to certain positions, such as those in construction trades or requiring federal background checks.

Best Practices for Cannabis Testing

Understanding drug testing is crucial for human resource executives. Traditional urine tests can detect THC for up to 30 days, raising concerns about compliance with the new law. The move towards saliva testing, which is less invasive and better aligns with identifying current impairment, is gaining traction.

  • Clear Written Policy: Establish a comprehensive written policy defining who is covered, circumstances for different tests, procedures, and disciplinary consequences for positive results or refusal to test.
  • Consistency is Key: Enforce drug testing policies consistently across all employees to avoid potential legal challenges.
  • Stay Informed: Confirm with drug test vendors that their methods comply with the latest laws and standards.
  • Reasonable Suspicion Documentation: Train managers to document objective facts indicating impairment, such as bloodshot eyes, slurred speech, impaired motor skills, or difficulty comprehending questions.

Cannabis and Employment Practices

As the cannabis landscape continues to evolve, human resource executives play a crucial role in ensuring their organizations navigate these changes successfully. By staying informed, updating policies, and implementing best practices for drug testing and accommodation, employers can strike a balance between respecting employees’ rights and maintaining a safe, productive work environment.

  • Zero Tolerance Policy: Many sectors find it ideal to maintain a zero-tolerance policy for working while impaired. Clearly define this in your policy.
  • Possession at Work: Employers can prohibit employees from possessing cannabis at work. Clearly communicate this in the policy to avoid misunderstandings.
  • Accommodating CBD: The treatment of CBD in the workplace is a gray area. Employers can choose to treat it like recreational cannabis or differently, but consistency is essential.
  • Reasonable Accommodation: While employers generally must make reasonable accommodations, no state currently requires accommodation for medical cannabis use on the job. California law explicitly states that on-the-job use is not a reasonable accommodation.

California's recent legislative changes serve as a blueprint for other regions grappling with similar challenges, emphasizing the need for proactive and thoughtful approaches to cannabis in the workplace.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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