How Marijuana Legalization Could Affect Employers’ Drug Testing Policies

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As marijuana legalization looms on California’s horizon, employers are conflicted about their policies of drug testing.

If voters agree to legalize pot on November 8, business leaders and employment experts say employers can find themselves in trouble for asking an underling to pee into a cup. That common pre-work screening could violate an employee’s privacy regarding a medical condition. And, for potential employees, deciding whether to comply with drug testing often means a choice between refusing and not getting the job, or agreeing and being outed as a pot user.

“The one thing that’s not clear to both employee and employer are those protections,” says Edward Yost, human resources business partner with the 285,000-member Society for Human Resource Management. “Once (marijuana) is legalized, that will protect you from prosecution, however it doesn’t protect your job.” Employers won’t tolerate drug use on the job even if someone has a medical marijuana excuse. The California Supreme Court agrees with the employer on this issue. “Most employers do [testing]because they don’t want employees doing something and coming to work, whether that’s drugs or alcohol,” Yost says. “Alcohol is legal but you can’t drink it on the job.” Federal law places few limits on drug testing. It neither requires nor prohibits testing, leaving that up to state and local governments to decide. However, federal law does require testing in safety-sensitive industries like transportation, aviation and NASA, says NOLO Network, one of the web’s largest libraries of free consumer-friendly legal information. According to the legal site, “California is one of the few states with a Constitution that includes a right to privacy for public and private employees. California court cases have found that employers may require employees to pass a drug test as a condition of employment. The employer must test all applicants for particular job positions and may not single out applicants based on protected characteristics such as race or disability.”

Yet, marijuana legalization could lead to a snarl of legal dilemmas. California has a “compassionate use” law, which allows residents to use marijuana for medical purposes. However, California’s Supreme Court has held that an employer may refuse to hire an applicant who tests positive for marijuana, even if the drug is legally prescribed for a disability. This could leave employers open to disability discrimination claims. Some companies refrain from drug testing, altogether. Like Yahoo, which is based in Playa Vista. “Although drug-testing is not part of the hiring process, Yahoo has a drug-free workplace policy,” company spokeswoman Carolyn Clark says.

While Yahoo may not test, there are a many do test their employees. According to a recent article posted by SHRM, the world’s largest HR professional society, a 2013 report found that “78 percent of respondents overall conduct drug testing on some portion of their workforce. This number jumps dramatically in the transportation industry (98 percent), which has additional regulatory requirements.”

A recent New York Times article even reports that drug testing even has become an impediment for companies looking to employ people to operate heavy machinery. The article gives examples of transportation companies whose prospective drivers won’t show up for drug tests. Yost has experienced a similar effect. He says that some prospective employees will even leave during the interview process if drug testing is required. “Potential employees who are asked to take a test will get up and walk out,” Yost says. “That’s not a unique circumstance.” Yost says some companies choose not to test, because it can get expensive, particularly if there is a lot of turnover. And companies who random drug test often face a complicated challenge. “You risk losing your best producer or employee,” Yost says. “That’s a risk some employers aren’t willing to take.”

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