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Recent legal developments have impacted drug and alcohol policy enforcement in the workplace. In this episode of California Employment News, Weintraub Labor & Employment attorneys Lizbeth “Beth” West and Ryan Abernathy provide an overview of the latest legal updates, best practices for implementing these policies, and how they apply to remote workers.
Watch this episode on the Weintraub YouTube channel.
Show Notes:
Ryan: Hello, everyone, and thank you for joining us on this installment of California Employment News, an informative video resource offered by the Labor and Employment Group here at Weintraub Tobin. My name is Ryan Abernethy. I’m joined today by my partner, the Distinguished Beth West. For today’s episode, we’ll be discussing some developments in the area of drug and alcohol policy enforcement in the workplace and how to best implement those policies with remote workers. Beth, why don’t you start us off and tell us about the current state of the law regarding cannabis use in the workplace.
Beth: Thanks, Ryan. Even though federal law still classifies cannabis, also called marijuana, as an illegal controlled substance, many of you probably know the use of medical and recreational marijuana is legal for adults in California. Because marijuana use is legal in California, most, but not all employees have certain employment protections now for the legal off-duty use of marijuana. Pursuant to A. B. 2188 and S. B. 700, which are codified in our California Government Code and went into effect January first of 2024, California employers with five or more employees may not request information about prior cannabis use from an applicant for employment or use any information obtained about prior use from a criminal background check when making hiring decisions. Also, covered employers may not make any employment decisions, including hiring, termination, or any other decision regarding the terms and conditions of employment, or penalize current employees because of the employee’s lawful use of cannabis off the job and away from the workplace. There are exceptions to this. An employer is permitted to make those decisions if they are required to do so under applicable law. For example, employers in the construction industry or those that are subject to federal background or security clearance obligations.
However, employers can still mandate that employees not report to work under the influence of cannabis or possess or use cannabis during work hours, which would include during meal and rest periods or at any work location or work event, including while driving for work. Employers can still conduct post-offer pre-employment drug screens for applicants and also conduct drug tests for current employees in certain situations. However, there are limits and requirements under the law when they do so. I’m going to turn this over to Ryan now, who will discuss employer policies in drug testing.
Ryan: Thanks, Beth. Given this new cannabis law, the next question that naturally arises is, to what extent can companies test their employees for the use of cannabis and other drugs in the workplace? Off the top, it’s important to note that random drug testing is almost never permissible in California. But for job applicants, employers can conduct post-offer, pre-employment drug screens, including for marijuana, and can deny employment if the test is positive for what’s called psychoactive THC. Even if the applicant was legally using the marijuana, medicinally or recreationally. For current employees, California law prohibits an employee from taking adverse action against an employee on the basis of drug test results showing only non-Psychoactive cannabis metabolites. We’re going to use that term a lot here. What that is, a non-Psychoactive cannabis metabolite, those are substances in a person’s hair, in their blood, urine, or other bodily fluid that indicates the person used cannabis at some point in the past. Employment drug testing for these types of metabolites is impermissible because it’s not possible to distinguish whether the presence of those metabolites was due to lawful use, lawful off-duty use, or impermissible on duty cannabis use. So drug testing can also be required in certain circumstances after an employee is involved in an accident.
Employers can also conduct what’s called reasonable suspicion drug testing. If an employee appears to be impaired at the work site, for instance, based on observable and objective signs that an employee may be under the influence of drugs while at work, that employee may be drug tested. Such signs of this could include things like odors emanating from the employee, slurred speech, lethargy, or bloodshot eyes. Companies should provide reasonable suspicion testing training to supervisors or other company officials that are tasked with identifying these types of signs so they have the ability to detect and document the signs and symptoms of drug and alcohol use. Employees who take reasonable suspicion testing should be required to remain off-duty until a negative drug or alcohol test is received. If testing proves positive, then that employee may be subject to disciplinary action up to and including termination after the company has investigated the circumstances and determined that company policy has been violated. Because of this, employers are wise to place this policy squarely in the handbook so that employees understand that compliance with the company’s policy against drug and alcohol use is a condition of their employment, and so that they’re on notice that they may be subject to drug testing under certain circumstances.
Beth, with that, can you tell us how drug testing policies can be enforced by employers with remote workers?
Beth: Yeah. Since remote workers are just that remote and not physically present in the workplace, it may be pretty hard to know if they are complying with the employer’s drug and alcohol policy. Since testing for reasonable suspicion has to be based on some objective facts or observations, alcohol in the breath, smell of marijuana, some other indication or physical symptom of being under the influence, it’s probably pretty hard at times for an employer to determine if an employee may be under the influence while working remotely. But there are some indicators that could give rise to reasonable suspicion that a remote worker may be under the influence. Those would include things like slurred speech on calls or virtual meetings, appearing disheveled or showing some signs of intoxication during a virtual meeting, saying inappropriate or incoherent things during a call or a virtual meeting, Things like increased or poorly explained absences from a scheduled virtual meeting or last-minute cancelations of those meetings without some credible reason, changes in an employee’s job performance, changes in their interactions with coworkers, and any other erratic behavior or change in the employee’s disposition. Those could all potentially be signs of reasonable suspicion. However, while one indicator may not enough to constitute reasonable suspicion, if an employer notices a number of them or there’s some pattern of conduct or overall change in the employee’s behavior, it’s likely time to address it.
If we’ve determined there is reasonable suspicion that the remote worker may be under the influence of drugs or alcohol while working, the employer should contact that employee privately to discuss it. The employer should explain the conduct that has been observed and reiterate the employer’s expectation that all employees, whether they’re working on-site or remotely, must comply with the employer’s drug and alcohol policy. Depending on how the employee responds, the employer can It is advised that any further indication, reasonable suspicion that the employee may be violating the drug and alcohol policy may require the employee to undergo an immediate drug or alcohol test and could result in disciplinary action up to and including termination of employment pursuant to the terms of the policy. If the employee notifies the employer during a discussion like this that the employee has some substance abuse problem, The employer should likely, and again, depending on the circumstances, discuss the options available under an EAP program or some other program and accommodate the employee who says they want to seek rehab or treatment, provided that accommodation doesn’t create an undue hardship for the employer.
Ryan: Great. Well, thank you, Beth. Well, that’s it for today. Thank you all for joining us. You can find other episodes of California Employment News that cover many other topics of interest for California employers at the Weintraub Tobin YouTube channel or on the L&E blog at www. Thelelawblog.com. Thank you.
Beth: Thank you.