The ever-changing legal status of cannabis was the subject of a seminar at the Santa Maria Fairpark geared toward inquisitive employers uncertain about how changes in policy intersect with employees, the workplace and employment law.
For 90 minutes Thursday morning, Jennifer Komsky, an employment law specialist from the Los Angeles-based law firm Levinson, Arshonsky & Kurtz LLP, discussed marijuana in the workplace during the seminar dubbed "Clearing the Air."
Sponsored by Relation Insurance and the Santa Maria Chamber of Commerce, the seminar provided employers with a snapshot of relevant regulations and legal findings.
"Medical and recreational use of cannabis is still illegal under federal law and is considered a Class 1 drug," Komsky said. Though recreational use at the state level was legalized by Proposition 64, the law does not allow for an employee to be under the influence while on the job or to have THC (one of the primary psychoactive ingredient in cannabis) in their system."
Proposition 64 is consistent with a 2008 decision by the California Supreme Court, which held that employers can prohibit cannabis use in the workplace and are not required to accommodate for the use of cannabis or other illegal drugs.
"Whether it's recreational or medical, employees may be terminated if their cannabis use comes up, even though it is legal under state law," Komsky said.
While employers are within their right to adopt drug policies that conflict with state law, Komsky said enforcement should be done with care. Terminating employees due to a drug policy violation must be done with proper documentation, typically in the form of a positive drug test.
However, California law holds medical tests — including drug tests — to be a violation of privacy. Because of that, tests can only be mandated in three circumstances: as a condition for employment, with reasonable suspicion or in safety-sensitive occupations.
"You cannot have all applicants come in and [subject them to a drug test]," Komsky explained, adding that potential employers can only require a test after all other conditions for employment have been met. Once hired, Komsky cautioned testing employees given reasonable suspicion is one of the hardest justifications, adding that documentation must suggest use and impairment beyond a reasonable doubt.
"If there's no scent and if they may seem off, those [claims] are a bit more subjective and difficult to support," she said. "If you're testing someone on reasonable suspicion ... you really want to be clear with your documentation and specific with how it affected their performance."
While those in an office job may have little reason to be subject to a drug test, Komsky said state law permits random tests in "safety-sensitive" situations. Individuals in high-risk occupations, such as commercial drivers, construction workers or those who work with heavy machinery, should expect a higher level of scrutiny, including being subject to a random drug screening.
Joshua Lazar, a seminar attendee and Santa Maria lawyer, agreed with Komsky's assessment, adding that employees should be mindful of the nature of their work when determining if their employer may request a drug test.
"It's important to understand that if you're in a job where safety is a concern, drug testing, both random and mandatory, would be more reasonable because you're putting safety at risk," Lazar said. "Employers must ensure a safe environment for [their employees] and others. You can have your benefits reduced if you're a major contributor to an injury. Cannabis use would be one of those instances."