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who simply have THC in their system while at
work. Employers can also proactively instruct
its workforce not to do anything in their off-
duty lives that would raise reasonable suspi-
cion once they arrive to work (such as showing
up to work clearly under the influence, or
engaging in unsafe workplace activities).
Medical Marijuana Cards Do Not Trump
Company Policy:
The most common question
from employers relates to an employee who
presents a medical marijuana card as a defense
to having THC in their system. However,
the California Supreme Court case of
Ross v.
RagingWire Telecommunications, Inc.
(2008)
already pronounced that employers are not
required to “accommodate” marijuana use—
medical or otherwise. Thus, employees may be
terminated for violating zero tolerance drug
policies despite being medically cleared to use
marijuana.
Train Managers and Supervisors:
Employees
in managerial and/or supervisory positions
should be trained to identify employee’s
impaired by marijuana. While managers need
not be drug detectives, they should be able to
recognize the signs, including bloodshot eyes,
lethargic demeanor, lack of coordination, con-
fusion and lack of focus, etc. Just as they have
been trained to objectively identify the signs
of alcohol impairment at work, they should
be similarly trained for marijuana impair-
ment. Importantly, employers should ensure
that managers are aware of protocols when it
comes to reasonable suspicion drug testing
procedures, whether it includes documenting
their findings and directly sending the
employee for testing or otherwise informing
Human Resources of the situation.
Conclusion
It is likely that disgruntled employees will
eventually bring lawsuits challenging em-
ployers’ ability to discipline, or terminate,
employees for recreational marijuana use that
results in failed drug tests at work days or even
weeks after usage. For now, employers can feel
confident in applying and enforcing their drug
free workplace policy.
John Mavros is a Partner
in the Irvine office of
Fisher & Phillips LLP.
His practice involves
representing employers in
various aspects of labor
and employment law,
including employment
discrimination,
harassment, wrongful
termination, retaliation,
wage and hour
law, and class actions. John defends businesses
involved in both civil litigation and arbitration.
John's practice also includes preventative counseling.
He regularly assists clients with day-to-day
employment problems such as hiring issues, medical
leave guidance, employee terminations, workplace
investigations, reductions in force, and handbook
preparation. John also conducts sexual harassment
prevention training as mandated by AB 1825.
John has significant experience representing hospitality
clients in employment matters. Prior to becoming an
attorney, John worked for a hotel management company
that focused on revitalizing and restoring profitability
for hotels and motels. John's experience in this industry
provides unique insights for his hospitality clients.
This article provides an
overview of the law and is not
intended to be, nor should it
be construed as legal advice
for any particular fact situation.
For additional information
regarding how this issue may
affect your business, please
contact the author, John A.
Mavros of Fisher & Phillips,
LLP at 949-851-2424.