The cannabis conundrum

In the span of a generation or two, the American public's perception of marijuana has been transformed. Once seen as a gateway drug that was feared for leading to the use of more dangerous narcotics, marijuana is now embraced for its reported medical and nonmedical benefits: promoting relaxation, reducing pain and nausea, aiding sleep management, improving appetite, and even fighting certain cancers.

Accompanying the change in perception has been an attitude adjustment about marijuana and the law.

According to Pew Research, as recently as 2002, only 32% of adults favored the legalization of marijuana; as of November 2022, 88% of adults favored its legalization for medical use, with nearly 60% supporting legalization for all purposes. By the count of Professor Julie Werner-Simon, 37 states and the District of Columbia have legalized cannabis for medical or recreational use, or both; 13 other states continue to outlaw or strictly control access to it, even for medical treatment.

Meanwhile, legalization has transformed cannabis into big business. According to Forbes Magazine, as 2022 drew to a close, this year's sales of legal marijuana are expected to hit $33 billion; by 2030, they are projected to reach $57 to $72 billion, depending on how fast more states get on the legalization bandwagon.

As in so many other areas, California has set the pace for reform of the legal status of marijuana. In 1996, the state legalized cannabis use for medical purposes; in 2016, Proposition 64 legalized it for recreational purposes; and as of 2024, a year from now, AB 2188 will confer new legal rights in employment.

All of which has caused human resource specialists, union business agents, and labor and employment advocates to ask me this question:

Q. Are California workers getting the unfettered right to use marijuana on the job?

A. The short answer is No. Some explanation is in order.

AB 2188 identifies two marijuana-related bases upon which an employee might be mistreated by her employer: for using cannabis and cannabis products "off the job and away from the workplace," and for testing positive for the presence of "nonpsychoactive cannabis metabolites" that may be found in the employee's blood, hair, saliva, urine, or other bodily fluids during an employer-mandated drug screen. As to the latter, of course, harmless metabolites of tetrahydrocannabinol (THC), the main psychoactive ingredient in cannabis, are known to remain in the body for days, weeks, or even months after use or being under the influence. (The main nonpsychoactive ingredient in cannabis, cannabidiol (CBD), also can linger in the body; some but not all employers distinguish between THC and CBD when it comes to imposing discipline.) The statute, which is codified in Section 12954 of the Government Code, outlaws discrimination on both bases. An aggrieved employee will be able to assert a claim for employment discrimination on either basis or both bases in much the same manner that she might sue for employment discrimination based on age, race, sex or any other protected classification.

The implication of the new law is that an employee has certain rights to privacy in what she consumes while off-duty and off-premises on Saturday night, even if a calling card of her consumption remains in her body on Monday morning.

But AB 2188 has its limits. The statute expressly states that nothing in it permits an employee "to possess, to be impaired by, or to use, cannabis on the job, or affects the rights or obligations of an employer to maintain a drug- and alcohol-free workplace" under other state or federal laws. Nor does the new law prevent an employer - including but not limited to a state or federal contractor - from requiring drug screening as a condition of employment. Nor does it apply at all to employees in at least one key industry: the building and construction trades.

So AB 2188 cannot be considered a "hall pass" permitting an employee to do as she pleases with marijuana or any other drug. Indeed, the statute changes nothing about the status of other controlled substances, such as opiates, which remain just as illegal as they used to be. The so-called Cole Memorandum, issued by the U.S. Justice Department under President Barack Obama in 2013 and re-embraced by Attorney General Merrick Garland under President Joe Biden in 2021, merely announced a form of limited non-enforcement of the Controlled Substances Act as to marijuana only. The Cole Memorandum appears to represent the policy of the current administration, but is not a sweeping change in the underlying federal law outlawing most marijuana use.

The tougher question that I am now getting is this:

Q. How can the emerging rights of California workers to use marijuana off the job be balanced with the employer's legitimate concerns about controlling the detrimental effects of drugs on the job?

A. Even before AB 2188 goes into effect, a checklist is needed to strike the right balance between the emerging marijuana-related rights of workers in California and elsewhere and the legitimate business interests of the employer. The typical case is one in which the employee has been discharged or disciplined after testing positive for THC metabolites, but there are many variations. With thanks to Arbitrator George Roumell, who has lectured frequently on this topic, I recommend that advocates who are preparing cases on both sides get answers to the following twelve questions:

1. Is the applicable law federal, state, local, or some combination thereof? Besides the extensive array of federal laws and regulations governing controlled substances (see, e.g., Controlled Substances Act, 21 U.S.C. §§ 801-971), myriad state and local laws that vary with the location of the worksite, such as AB 2188, must be taken into account. A responsible advocate should identify all applicable laws governing the right to use marijuana in the workplace and elsewhere before pursuing or defending a wrongful discharge case.

2. If the applicable law is federal, do U.S. Department of Transportation rules apply as well? Strict rules and specific drug screening protocols govern the use of marijuana and other controlled substances by employees charged with safety-sensitive duties in aviation, mass transit, railway, pipeline, and trucking (the latter of which includes drivers of school buses and certain limousine services). It is important to know and follow these rules; to this end, the DOT maintains a useful website (see U.S. Department of Transportation, Office of Drug & Alcohol Policy & Compliance, DOT COVID-19 Drug and Alcohol Testing Guidance, available at Office of Drug & Alcohol Policy & Compliance US Department of Transportation).

3. Even if U.S. Department of Transportation rules do not apply, is the position safety-sensitive? In general, an employee working in a safety-sensitive position is subject to greater scrutiny, such as random as opposed to for-cause drug screening, than an employee working in another type of job. An effective advocate should know and understand the nature of the job in question. What constitutes "safety-sensitive" can be a matter of some debate; in general, it refers to heightened danger that requires an employee's full and unimpaired skill and judgment safely to carry out the job. Police and firefighters and heavy equipment operators usually qualify; office assistants and warehouse workers who stack pallets of consumer goods may not. Useful guidance is provided by the Society of Human Resource Management on its website (see Lisa Nagele-Piazza, What Is a 'Safety-Sensitive' Job Under State Marijuana Laws, Oct. 5, 2021, available at What Is a 'Safety-Sensitive' Job Under State Marijuana Laws? (shrm.org)).

4. If the applicable law is state law, are there rules specifically governing employment? In states recognizing the right to use marijuana for medical or recreational purposes, such right is typically conferred on residents in general rather than workers in particular. But at least seven states - not only California, but also Connecticut, Montana, New Jersey, New York, Nevada, and Rhode Island - have enacted legislation protecting the employment rights of recreational users. A larger group of 23 states has enacted legislation protecting the employment rights of medical marijuana users. Advocates should identify and familiarize themselves with the law of the particular state in which the work is performed (see California NORML, State and City Laws Protecting Marijuana Users' Employment Rights, available at State and City Laws Protecting Marijuana Users' Employment Rights - CaNorml.org).

5. Are any local or municipal rules applicable? Advocates should identify and familiarize themselves with the growing number of relevant local or municipal ordinances governing marijuana and the workplace. For example, in California, San Francisco has adopted an ordinance prohibiting an employer from conducting random drug screening or requiring an employee to undergo a drug screen as a condition of continued employment, but makes certain exceptions, including for screening based on "reasonable grounds to believe that an employee's faculties are impaired on the job" (S.F. Muni. Code § 3300A.5(a)). And in other states, major cities such as Atlanta, Baltimore, Kansas City, Philadelphia, New York City and St. Louis have enacted similar ordinances.

6. Are the employer's drug-related work rules reasonable? Many, if not most employers have promulgated work rules governing employee behavior in a wide range of areas, including the use or possession of controlled substances such as marijuana. Advocates should get copies of these rules if they have been reduced to writing (and on the management side, look into reducing them to writing if they haven't already been) and determine whether the rules are reasonable in light of the type of work and workplace. A basic tenet of progressive discipline is that management retains the discretion to enforce work rules so long as they are reasonable. Arbitrators and judges alike tend to uphold discipline, including discharge, that enforces reasonable work rules.

7. Adequate notice of work rule? No matter how reasonable, a work rule cannot be fairly enforced unless employees have sufficient notice of its existence. That's why best practice in the modern workplace is to train each affected employee in the nature, content, and application of a given work rule, and then to document such training so there can be no doubt the employee had it. Any work rule related to marijuana is an obvious candidate for this approach.

8. Is marijuana governed by a CBA or MOU provision? Advocates should know whether the workplace is unionized and if so whether there are any collectively-bargained terms or conditions of employment governing marijuana. The contract in which these terms are to be found is called a collective bargaining agreement in the private sector and sometimes a memorandum of understanding in the public sector. Collectively bargained terms or conditions of employment must be strictly followed because arbitrators and courts alike give them great deference.

9. If the employee uses marijuana but tests negative, can discipline be imposed? It is important to determine the disciplinary consequences of violating any work rule related to marijuana. A positive result on a drug screen of the blood, hair, saliva or urine is commonly used to detect an employee's violation of such rules. But a negative result does not necessarily exonerate the employee, especially if she has admitted, or been observed, using marijuana in the recent past. Advocates should be able to articulate their arguments for or against discipline under these circumstances.

10. If the employee tests positive, can impairment be presumed? Although drug screening is commonly used to detect an employee's violation of marijuana-related work rules, a positive result indicates exposure to and not necessarily impairment by the drug being screened. No conventional drug screen can accurately and scientifically tell whether an employee is impaired by marijuana or any other controlled substance. (The sole exception remains the blood alcohol concentration (BAC) test, which indicates impairment by alcohol consumption.) Yet it is common for the employer to reserve the right to impose discipline if the employee tests positive for the presence of metabolites of THC, even though its psychoactive effects have abated. It is important for advocates to understand whether a positive result is being offered to show impairment, and if so, what the arguments for and against crediting such proof will be.

11. Has progressive discipline been followed? If it is important to determine the disciplinary consequences of violating any work rule related to marijuana, then it is equally important to understand whether those consequences are meted out with progressive discipline. Progressive discipline is the principle that punishment should be imposed for the purpose of correcting employee behavior rather than its own sake; in practice, it means that discharge is reserved for a case in which prior discipline - such as verbal counseling, written warning, referral to substance abuse treatment, demotion, and/or suspension - has failed to correct behavior. Progressive discipline is adhered to in any workplace governed by a CBA or MOU or civil service rules. Although progressive discipline is not required to be honored in the at-will workplace, many juries, if not arbitrators and judges, expect it anyway.

12. Did the alleged misconduct occur on-duty or off-duty? It is important for advocates to be able to distinguish between on-duty and off-duty misconduct. This distinction permeates the questions posed by this checklist. In general, off-duty misconduct - including the use of controlled substances - is none of the employer's business unless and until such misconduct creates a harmful nexus with the employer's legitimate business interests.

Off-duty misconduct is a rich subject of its own that will be addressed separately in a future column.