Warren G. Bender Co.
January 17, 2018
On January 1, California joined several other states in legalizing recreational marijuana, also known as cannabis. As with prescription medication, alcohol, or any other substance that affects a person’s cognitive behavior, there are certain actions a person cannot legally do or safely perform under the influence of cannabis (e.g. driving). The ingredient in cannabis products believed to produce a psychoactive effect is Tetrahydrocannabinol (THC). While the psychoactive compound THC is relatively short-lived in the system, the inactive compound produced from metabolizing THC (carboxy THC or THC COOH) remains present in a person’s system for weeks. In a Standard 5 Panel Drug Test, the presence THC metabolites reveal whether the tested person has used cannabis within the prior three to six weeks. This means that, unlike testing blood alcohol levels, testing for the presence of THC metabolites cannot accurately determine if someone is under the influence. A ‘positive’ result for THC metabolites only shows that an individual has used cannabis within the last month or so, not when it was used, or how much.
As an employer, you may be asking how your company might continue to enforce a zero-tolerance drug policy specifically for the use of marijuana (cannabis). Let’s imagine that you have a situation where a manager suspects that an employee is under the influence of cannabis after they’ve returned to work from lunch. How could the manager be sure that the employee actually used cannabis before returning to work? An employee might smell like cannabis because they were near someone who was smoking. Smell is not a reliable indicator, especially given that many products containing THC are not smoked and/or have no odor. There are tinctures, infused foods, vaporizers, and capsules that have no smell. For this reason, learning to recognize the signs and symptoms of inebriation and being alert for unsafe behavior provides a broader and more useful assessment. As an employer, being prepared for changes to reasonable suspicion drug testing procedures could avoid wrongly accusing an employee.
Another scenario to consider is that if an employee uses cannabis while not at work on a Sunday, they are very likely to test positive on a Wednesday; the positive test doesn’t prove that they were under the influence on Wednesday. One school of thought is that employers can’t control the actions of employees while not at work; this has yet to be tested by California courts. That said, unfit actions or unsafe behavior at work are unacceptable hazards that an employer can control. These types of infractions are usually documented in an employer’s Employee Handbook and acknowledged by the employee. If an employee is observed acting in an unsafe or unseemly manner at work, they may be subject to corrective action regardless of whether or not they are under the influence of cannabis.
In addition to legalization of recreational use, ‘medical marijuana’ is still being prescribed by physicians. Just like any prescription medicine that may impair a person’s ability to do his or her job, requiring a note from the prescribing physician with job restrictions while using the medication provides documentation resolving any ambiguity. Providing a detailed job description including the employee’s essential job functions can help support the next action you to take.
It’s important to note that cannabis products are still against Federal Law. Federal law applies to work performed for the federal government or which takes place on federal land and more. Drivers subject to Department of Transportation (DOT) Regulations are not allowed to test positive for THC metabolites no matter what state they are in.
Future court cases in California will eventually shape the way each situation should be handled. How your company decides to deal with these changes will define your company’s future liability, insurance costs, and reputation. Being educated on this subject and developing an action plan will help you protect your business and preserve your working relationships. We recommend you seek the guidance of your legal, insurance, human resource, loss control, and safety professionals.
Disclaimer: The information in this post is provided for general informational purposes only. No information contained in this post should be construed as legal advice from the Warren G. Bender Co. or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.