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Bryant Whitten, LLP

Federal and state confusion over drug-free workplaces

Does California law mandate that businesses keep their workplaces drug-free? This controversial question can be tough to answer. A recent example demonstrated that the potential for workplace discrimination can occur in a variety of contexts.

One situation at a California nonprofit company involved the hiring of an employee for a maintenance position. A middle manager had instructions to test the applicant repeatedly until he was able to pass a drug-screening test that qualified him for employment. These directions stood in direct conflict with written procedures that said to reject someone who failed a drug test. In this situation, the applicant had used medical marijuana for many years and stood a high risk of testing positive for drugs.

Some people might point out the unfairness of this situation and insist that all applicants should be treated the same. Giving one person several opportunities to pass a drug test could put the company at risk being accused of discrimination.

The issue remains complicated because state laws permit marijuana use while federal laws continue to ban it. That causes confusion, especially for state and federal agencies who wonder which laws to follow.

A 2008 verdict in the California Supreme Court upheld the firing of a worker who used medical marijuana. The court ruled that employees are not protected at work if they use medical marijuana. An additional consideration involves the federal Drug-Free Workplace Act of 1988, which applies to businesses who receive federal grants or contracts. California has a similar act.

Because the laws surrounding the use of medical marijuana are not yet firmly established, this area can be confusing, especially when related to employment. An employment attorney might be able help clients sort out the complex legal matter.

Source: The Bakersfield Californian, "HOLLY CULHANE: Must California workplaces be 'drug free?'" Holly Culhane, April 30, 2013

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