Impaired in 2020: Ongoing issues for Cannabis in the Workplace

Building on decades of steady movement towards legalization of cannabis in California, 2020 promises new questions for employers concerned about workplace safety and federal compliance.   As a refresher, 2016’s Proposition 64 legalized recreational use of cannabis products, but expressly carved out the workplace and preserved employers’ ability to keep marijuana out of the workplace.  Then as now, the business community’s concern about marijuana is two-fold: safety and compliance with both California and federal law.

On Friday November 8th, the Senate Labor Committee (Chairman Hill and Senator Mitchell in attendance) held a hearing on marijuana in the workplace where scientists, cannabis industry members, labor, and the employer community testified on the future of marijuana in California.  Surprisingly, the speakers agreed on a number of key roadblocks to marijuana’s normalization in California.   First: federal law continues to pose a huge obstacle to normalization of marijuana in California because it identifies marijuana as a schedule 1 drug, limits banking opportunities, and requires employers receiving federal contracts or grants to have a drug-free workplace policy.  Though criminal enforcement appears likely to remain minimal at the federal level, the potential loss of federal contracts or grants makes marijuana in the workplace a huge financial risk for many of California’s largest employers.  Second: employers (and law enforcement) still do not have access to adequate testing methods to definitively identify how recently marijuana was used and the subject’s level of impairment at a particular time.  The tests that are presently available and in use by businesses and law enforcement are urine and blood testing, but both only provide limited information (whether marijuana use within the last 30 days) and cannot determine impairment at any particular time.  Though new tests – including a THC breathalyzer – are reportedly under development, they are not yet ready for public use.  As such, both employers and law enforcement are left with unsatisfactory testing methods when trying to identify impairment due to marijuana at a particular time.  Third: local regulation remains an ongoing check on the growth of the legitimate marijuana industry in California, with many local governments zoning, regulating, and taxing marijuana businesses out of viability when compared to the well-developed illegal market.

These three issues – federal law, testing limitations, and local control – are all going to be difficult to resolve via state-level legislation.  However, if history is any guide, California’s voters or the legislature will almost certainly try to do something in this area in 2020.  Notably,  the “California Cannabis Hemp Initiative 2020”, which was submitted to the Attorney General’s Office on August 19th, 2020 and is presently collecting signatures, already threatens drastic changes, including: (1) banning pre-employment drug-testing for marijuana if the testing relied on inactive marijuana metabolites (as present urine testing does); (2) preempting local zoning and taxing of marijuana;  (3) allowing users up to 99 flowering plants for personal use; (4) requiring a case-by-case review of all prior marijuana convictions.  Though it remains to be seen whether this initiative will gain sufficient signatures to qualify for the ballot, I find myself agreeing with Senator Mitchell’s comment at Friday’s hearing: making sweeping policy changes through individual initiatives (and not the legislature) certainly seems like less than ideal.  Of course, once we see what bills come forward in January, we may have to revisit that conclusion.

Until then, federal law and scientific testing limitations remain key concerns for employers looking at their policies on marijuana in the workplace.

Robert Moutrie, Policy Advocate