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Drug testing and California employers: 3 things to know

Last weekend NPR reported that employers in Colorado are rethinking their policies on employee drug testing. In a very tight labor market, employers are having second thoughts about insisting on a zero-tolerance stance toward off-work marijuana use.

What about California? After all, the labor market is strong here as well, and last November voters passed Proposition 64, which legalized recreational cannabis in California. In this post, we will identify three important things to know regarding drug testing by employers in the Golden State.

Proposition 64 allows employers to make job applicants or employees take drug tests - and to fire employees for testing positive.

It may seem contradictory to allow employers to do this, since Prop. 64 decriminalized cannabis consumption on private property.

Prop. 64 also states, however, that employers can fire you for testing positive for marijuana, even if there is no evidence you were high while working.

In practice, then, you can be fired for doing something legal under state law, namely consuming marijuana. And marijuana does still remain a controlled substance under federal law.

San Francisco and some other cities have laws that regulate employer use of drug testing.

Workplace drug testing is an issue affected by a complicated set of federal, state and local laws.

For example, at the federal level the Americans with Disabilities Act (ADA) prohibits employers who have 15 or more employees from discriminating against employees who have sought out treatment for drug addiction. The ADA also contains protections for recovering alcoholics.

At the local level, cities such as San Francisco and Boulder have city ordinances that regulate drug testing by employers.

Only three states have protections in state law for employees who use medical marijuana.

In Colorado, the tight labor market has prompted some employers to relax their drug testing policies. In a state where 1 in 7 adults uses marijuana, screening out cannabis consumers really limits the labor pool.

Though less than 10 states have legalized recreational cannabis, 29 states now allow for medical marijuana. And yet only three states have employment protections in state law for the use of medical marijuana. Those states are Arizona, Delaware and Minnesota; California is not among them.

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