Marijuana was legalized for recreational use in California when voters approved Prop 64 on November 8. Now, many employers and workers in California are wondering, “Can employers drug test for marijuana now that it is legal?” Thousands of employers perform drug screening tests before hiring and some even after they hire. Before employers change their policies and before workers go lighting up, here is how the legalization of marijuana in California affects the right of employers to perform pre-employment and post-hire drug screening.
California’s voters approved Prop 215 in 1996 which legalized medical marijuana in California. Since then employers have still performed drug screening for marijuana. Many employers have ruled out candidates for employment and have even terminated employees after they tested positive despite the candidate or employee meeting the legal requirements for the use of medical marijuana. There have been numerous lawsuits filed as a result.
California’s Supreme Court has repeatedly held that employers have a legal right to conduct pre-employment and post-employment drug tests and are able legally authorized make personnel decisions according to the results.
Employers should be aware that Proposition 64 contains a clause confirming that employers are not required to amend current drug testing policies: “Nothing in section 11362.1 shall be construed or interpreted to amend, repeal, affect, restrict or preempt … the rights and obligations of public and private employers to maintain a drug and alcohol free workplace … or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees.”
This means that employers can still legally drug test for marijuana now even though its use is legal. Some employers may have a change in view now that marijuana is legal for recreational use in the state but many still have good reason to drug test. In employment settings where there is operation of heavy machinery or impairment would jeopardize the safety of anyone, including the user, there really is no explanation necessary, as the reason speaks for itself.
From our law office offices in Modesto, California, our employment law attorneys represent employers in communities throughout the San Francisco Bay Area and Northern California. Contact Arata, Swingle, Van Egmond & Goodwin if you are an employer and have any questions about your current drug screening policies.