- According to Geoffrey Westbrook, an attorney with Seyfarth Shaw, the increasing accessibility of marijuana over the years, as well as its acceptance into mainstream culture, have led to serious misconceptions regarding its permissibility in the workplace - especially in California.
- California led the medical marijuana movement when it passed the so-called “Compassionate Use Act” in 1996. At present, use and distribution of marijuana remain federal offenses, although unenforced per current U.S. Department of Justice policy.
- Westbook offered a few reminders to help clear up this this sometimes “hazy” area of California law.
One suggestion is that with few exceptions for certain industries, public and private California employers may not require job applicants to disclose information concerning an arrest that did not result in a conviction or their referral to or participation in a pretrial or post-trial diversion program. Marijuana convictions older than two years are expressly off limits.
Westbrook writes that drug tests performed after the person has been hired are essentially prohibited without a reasonable suspicion that the worker is under the influence (certain transportation and safety-sensitive jobs have looser restrictions for when one can test), or pursuant to a narrowly-drafted post-accident testing policy.
Westbrook concludes that as marijuana use for medical purposes has become much more prevalent in California, it's a good time for employers to assess their written policies, job applications, background check procedures and interview materials — especially nationwide companies using form documents —to ensure compliance with California law.