Law Offices of Jennifer McGrath

It was big news earlier this month when Amazon announced that “…we’re adjusting our drug testing policy. In the past, like many employers, we’ve disqualified people from working at Amazon if they tested positive for marijuana use. However, given where state laws are moving across the U.S., we’ve changed course. We will no longer include marijuana in our comprehensive drug screening program for any positions not regulated by the Department of Transportation, and will instead treat it the same as alcohol use. We will continue to do impairment checks on the job and will test for all drugs and alcohol after any incident.”

Many employers have been wrestling with a reasonable cannabis testing policy that protects the workplace and also the personal rights of the employee. This move by Amazon is the right direction for employers and simply good policy. And, Amazon is not alone.

Earlier this year in March, in a decision providing some protection for civil service employees, the California State Personnel Board adopted an Administrative Law Judge proposed decision reversing the termination of a Caltrans Highway Maintenance Worker due to a positive urine test for THC, and designated the adopted Proposed Decision as a Precedential Decision.

The comments in the decision by the Board reflect current science and good policy, and provide a road map for employers.

The Board noted that although marijuana is federally illegal, it is legal and permissible in California.  Its use is now no different from the personal consumption of wine, beer, or other alcoholic beverages.

The Board noted that a positive marijuana test merely shows that the worker used marijuana at some point in time before he reported to work and does not create nor establish any legal presumption of impairment.

The Board noted that its decision does not apply to positions that are federally regulated where persons employed in those regulated positions are prohibited from any drug use including marijuana.  The decision also does not apply to peace officers who are expressly prohibited from using any mind-altering substance regardless of its legality.

The Board also noted that nothing in the decision should be interpreted to excuse or shield an employee from discipline if they are impaired or under the influence from marijuana, alcohol, or any other substance while at work or while on standby for work.

About that science. There are numerous studies finding insufficient evidence to support a statistical association between off-the-job cannabis use and elevated rates of occupational accidents or injuries.

In another interesting study, the National Institute of Justice (the research, development and evaluation agency of the U.S. Department of Justice) supported researchers from RTI International to look at how specific cannabis doses and administration methods (eaten or vaped) affect THC levels in the body and how that correlates with performance on impairment tests.

Results from their clinical dosing sessions showed that THC levels in biofluids (blood, urine & oral) were not reliable indicators of marijuana intoxication and did not correlate with field sobriety test performance, regardless of how the cannabis was ingested.

Lawmakers also seem to be moving in this direction. Some states have enacted laws prohibiting employers from discriminating against employees (and prospective employees) who use cannabis. The California legislature is currently tinkering with a bill (AB 1256) that would provide some protection for employees.

Under the present circumstances, it will not be surprising to see more employers adopting a drug policy that essentially treats cannabis use like alcohol use, recognizes the limits of cannabis testing, and acknowledges that the presence of THC does not create a presumption of impairment.

Contact us by phone or email to learn more about California cannabis law including state, county or city cannabis licensing and cannabis regulations, cannabis regulatory compliance, and cannabis litigation.