November 2018 Newsletter-California’s Hazy Marijuana Law: Are You Still Dazed and Confused?

Written by: Lillian Romero Gomez & Jessica P. Gomez-Lizarraga, esq

Many employers ask the same questions concerning marijuana in the workplace, including:  Do I need to accommodate an employee who uses marijuana, even for medicinal purposes? Do I still need to hire someone that tests positive for marijuana?  Can my employee smoke/consume marijuana on their breaks?  Is marijuana excluded from a drug-free work policy?  For now, the answer is a conditional no.

The law remains employer-friendly concerning marijuana use in the workplace. Most employers are committed to a drug-free workplace.  Studies show that marijuana use can hurt workplace productivity; increase workers’ compensation claims and premiums; exposes organizations to potential OSHA violations; and increase employee absenteeism.  While the law protects an organization’s drug-free policy, the law is unclear regarding privacy and disability issues.

However, we anticipate adjustments/clarifications to marijuana use in the workplace in the coming years. With this in mind, we recommend the following risk management practices.

• Establish a clear “drug-free workplace” policy in your handbook that includes cannabis.
• Visibly post in a work commonplace (such as the break room) your”drug-free workplace” policy consistent with your handbook.
• Make sure you follow protocol regarding drug testing. Aside from state-mandated laws, there may also be municipal ordinances surrounding testing. Have your Human Resources department work with an employment attorney to ensure that your drug testing policy is compliant.
• Create a plan to respond to marijuana positive results- Work with an HR professional and employment attorney on how to deal with employees who test positive, such as preparing a script or letter. Asking questions about the underlying marijuana use may expose your organization to a disability claim/HIPPA violation.
• Work with your insurance broker to ensure that you have a comprehensive employment practice insurance policy (EPLI) in place. There is no standard EPLI policy; it is imperative that your organization works closely with your broker to help you obtain the appropriate EPLI coverage that fits the needs of your organization.

Additionally, many insurance carriers offer a variety of resources that can help your organization with its loss control needs.

In 2019, we may see further interpretations and requirements under the law regarding marijuana use in the workplace. Check out our Facebook  and website  to look at those updates in the future.

Stay tuned for our FREE annual Employment seminar in early 2019. If you have any questions or would like us to review your EPLI policy, call us at (626) 332-2258.  We are here to help.

*This article is for informational purposes only. It is not to be construed as legal advice. This article is subject to change and may be subject to future updates.