As marijuana legalization looms on California’s horizon, employers are thinking about the conflicts of their current policies of drug testing. If voters do decide on November 8th to legalize, then businesses and employers might find themselves in trouble for asking an applicant to pee in a cup.
Why? This common prework screening could violate an individual’s privacy regarding their medical conditions. But applicants will be faced with the decision of whether to comply with drug testing, or risking the chance that they won’t get the job, or being “outed” as a marijuana user.
Because of this dilemma, employers across the state of California are having to ask themselves a pretty big question – to test, or not? If they decide to test, then they will have an array of other tough decisions to make – such as who to test, and when.
This is something that remains unclear across legalized markets, including Colorado. Although marijuana is legalized (even recreational use) and the law will protect you from prosecution of recreational use, it does not protect your job.
Employers do not (and will not) tolerate on-the-job drug use, even if that employee is a medical marijuana patient. And it looks like things will stay this way in California; the California Supreme Court agrees that there should not be marijuana use among employees. They use alcohol as a comparison – alcohol is legal but you cannot drink it on the job.
Why Things Get Especially Tricky For California
California is one of the few states with a constitution that includes a “right to privacy for public and private employees.” Court cases in Cali have found that employers may require employees to pass a drug test as a condition for employment. The employer must test all applicant for particular job positions and may not single out any applicants based on any protected characteristics (such as race or disability).
California also has a “compassionate use” law, allowing residents to use marijuana for medical purposes. However, the state Supreme Court also says that an employer can refuse to hire an applicant who tests positive for marijuana, even if it is prescribed legally for a disability. This then technically leaves employers open to disability discrimination claims.
So, companies and employers are left to choose – test everyone, or test no one.
As of now about 78% of employers conduct drug testing on some portion of their workforce. Therefore, it seems to be the more common choice. There is an especially strong argument for drug testing in certain industries (such as the transportation industry), and for certain positions. Anyone operating heavy machinery should not be using drugs on the job – not many will disagree with this.
Not To Test
Although currently most California employers to drug test, we might see this change if marijuana is legalized in California. If it is legalized, it shows that the substance is becoming more and more socially accepted and therefore may not seem like as much of a hazard.
Drug testing is also very expensive and may limit your choices of employees. Some prospective employees will get up and leave during the interview process if they find that drug testing is required. And random drug testing is a risk that will increase post recreational legalization of losing some great employees – it could be your best producer, or your best ideas man, or the employee that has the best customer service.