The law says "OK," but your boss says "no way!"
That's the dilemma many California residents are now facing in the wake of Prop 64.
On November 8, voters approved what is known as the California Marijuana Legalization Initiative, which allows adults over the age of 21 to possess and use marijuana for recreational purposes. In addition, the measure will levy new taxes on cultivation and retail price.
Some conflict has arisen, however, over a clause that specifically protects the rights of employers to establish or maintain drug-free policies and terminate workers for the use of cannabis. The California chapter of the National Organization for the Reform of Marijuana Laws (NORML) says one of the top inquiries they receive is whether a person can be fired over a failed drug test, and the answer is a definite yes. Because of this, raising awareness about the ineffectiveness of drug testing and alternative methods of determining impairment, introducing legislation to protect employees and changing the public perception of marijuana are top priorities for the group.
According to NORML, employer drug testing stems from the Federal Drug-Free Workplace Act of 1988, which requires drug prevention programs for government employees and employers with government contracts. Once urinalysis tests became widely available, private employers followed suit. NORML contends, however, that drug-testing is not required and this is a misinterpretation of the law.
"It (a government contractor or employer) just has to have some kind of program in place to have a drug-free workplace. It doesn't mean drug testing is what's mandated, according to our reading of the law, but it's been enacted that way," Ellen Komp, deputy director for California NORML, told the Northern California Record.
Komp further argues that drug testing does not affect or determine safety in the workplace, an often cited reason for implementation, and that there are more appropriate methods to determine impairment. This follows the prevalent contention that because THC, the active ingredient in cannabis, can stay in the body for as long as 30-45 days, urinalysis is only an effective determinant for use and not necessarily impairment.
"Studies are now in showing it (drug testing) doesn't increase workplace safety. There are better options. The best option is impairment testing. You can be impaired on the job for a variety of reasons, not because you happen to have THC in your urine because you smoked weeks earlier," Komp said.
Bowles-Langley has developed an application called Alertometer which can be used prior to driving or operating machinery to determine the user's reaction times and other basic brain functions. It is marketed as an effective tool for determining fatigue and impairment.
"That kind of thing does actually have measurable improvements in workplace safety," Komp added.
Past marijuana legislation in California has typically favored workplace substance abuse policies. Prop 19, which failed to pass in 2010, included employment protection for cannabis use. This provision was cited by many as the reason for its failure, though supporters blame low voter turnout in a midterm election. A law did pass in 2008 to exclude users of medical marijuana under Prop 215 from employment drug testing, but it was subsequently vetoed by then-Gov. Arnold Schwarzenegger. Ten other states provide exemptions for certain medicinal marijuana patients.
Because amending the law is such an arduous task, NORML also works to change public perception of marijuana and gain wider acceptance. For the time being, this may be the best scenario for California workers.
"In other states, l did see some articles, like in Colorado, where some employers eased up on their drug testing policies. That's probably the way it's going to change," said Komp.