Compliant Cannabis Testing in the California Workplace

We’re so excited to announce our new segment: “5-Tip Friday”. Each week, we’ll outline 5 tips for business owners, startups, and franchisors about trending topics or answering some FAQs.

Amazon announced earlier this year that it will no longer undertake any employee testing for cannabis. This is on the back of a bill that California Assembly Member Quirk introduced in February. The Bill, in its original form, would have prevented California employers from discriminating against a person because a drug screening test shows THC in their urine. It has since been amended to exclude employment discrimination where a drug test shows “nonpsychoactive cannabis metabolites in their urine, hair, or bodily fluids”. 

But this isn’t the law as it stands today.

In this week’s 5 Tips Segment, we’re discussing cannabis and drug testing in the workplace. 

5 Tips to Administer Compliant Drug Tests in California: 

Tip 1: Test Every Candidate or Don’t Test At All.

California courts have found that employers may require job candidates to pass a drug screen as a condition of employment, even where the drug is prescribed to treat a medical condition. But the testing must be undertaken in a way that does not discriminate between candidates. Don’t decide on an ad hoc basis whether to test certain candidates. You should test every candidate for a particular role or don’t test at all. This helps to avoid the appearance of discrimination. 

Tip 2: Unless you’re required to randomly test your employees, it’s best not to. 

Legally, you can test your current employees based on reasonable suspicion. Your basis for reasonable suspicion may include:

• Observing a pattern of abnormal conduct or erratic behavior;
• Observing symptoms of drug use or witnessing use;
• An arrest or conviction for a drug-related offense while employed;
• Information from reliable sources or sources that can be independently corroborated; or
• Evidence that an employee tampered with a previous drug test. 

Random drug testing at the workplace is highly controversial and generally discouraged – unless you’re required to do so (as is the case in certain industries). 

Tip 3: Look beyond the law when considering whether to test.

If your candidate comes with stellar references, interviews well, and has the education and experience you’d love to see in your company, does it matter whether they use cannabis in their spare time? 

Using drug screens can deter otherwise exceptional candidates who ingest legal recreational cannabis off the clock. For current employees, it may be better to address issues and provide caution letters related to their work performance instead of testing for cannabis or other drugs.  

Tip 4: Have a drug policy in place. 

You should have a defined company policy in place that outlines when, how, and why candidates and employees may be screened for drug use, as well as the consequences for failing a drug test. Your internal drug policies should detail your obligations and rights as an employer and advise your team to seek advice from a qualified attorney when managing an employee with drug dependency.  

Tip 5: Document your reasonable suspicion. 

If an employee or former employee makes an employment law claim based on drug testing in the workplace, you should be able to provide contemporaneous notes that outline: 

• The basis for your reasonable suspicion, 
• What steps you took, as well as 
• Any conversations that took place. 

Don’t rely on your memory alone, document everything as it happens using language that’s as close to verbatim as possible.

There you have it – our first 5 tips! If you have any opinions, thoughts, or questions, feel free to comment on our social media post sharing this content, or reach out to us at info@cgl-llp.com 

If you’d like more cannabis-related content, visit our Cannabis Corner.

Finally, don’t hesitate to reach out if there’s any topic you’d like us to cover. We’re here to help!

• 5 Tip Friday
• Cannabis