Three years after recreational marijuana was legalized in California, it still casts a cloud over most job applicants.
Many employers in the state still require drug screening as a prerequisite for hiring someone, experts in the hiring field say. And while recreational use and possession are allowed for people 21 and older, failing a drug test can still prompt an employer to toss a résumé into the reject pile.
But with 11 states now legalizing recreational marijuana use, there are new perspectives that might be giving workers something of a break.
As of Jan. 1, Nevada became the first U.S. state to make it illegal for an employer to discriminate against potential hires who test positive for cannabis during a drug screening. Advocates of such laws say that traces of cannabis in a person’s blood does not mean he or she is will be unable to perform certain work tasks.
In California, a high-profile Supreme Court decision in 2008 ruled against a worker who used medical marijuana to treat a back ailment and was fired from his job as a telecommunications system administrator. The worker claimed the employer was discriminating against him because of a disability.
A law that would have protected workers facing similar circumstances was passed in the legislature but vetoed by Gov. Arnold Schwarzenegger in October of that year.
Drug testing is still commonplace at most California companies, said Vikita Poindexter, whose Temecula-based consulting firm handles human resources operations and compliance issues for employers.
“They’re still doing it, mostly because of concerns about opiates and meth and other drugs,” Poindexter said. “And, they’ll test for everything. While marijuana is legal in California, it’s still illegal federally.”
She said that there is likely more attention paid to cannabis tests if the job includes the use of heavy machinery. Not screening could increase a company’s legal liabilities in case of an accident and could also raise their workers’ compensation premiums.
Jonathan Judge, a partner and an employment lawyer with Cerritos-based firm Atkinson, Andelson, Loya, Rudd & Romo, said few companies are dropping drug tests during employee screening. He said one of his clients, a firm with offices in multiple states that employs a large sales staff, recently changed its position and stopped testing, but that company is an exception.
Opponents of marijuana tests point out that finding traces of the drug does not mean that the employee will show up for work impaired, or be unable to do the job.
It remains a difficult issue, said Richard Paul, a founding partner with San Diego law firm Paul, Plevin, Sullivan & Connaughton, who teaches employment law at the University of San Diego School of Law. Paul said federal agencies remain strict about screening because pot use is a federal crime.
State agencies that rely on federal funding will test because they don’t want to be perceived as not in compliance, Paul said, and many private firms with federal contracts think similarly.
However, because cannabis is legal and traces of it remain in a person’s body for a month, some employers are downplaying the value of tests. If they make a decision based on pot use, it would more likely be from observing on-the-job behavior, Paul said.
“Many employers say that, since it’s legal, they’re more reluctant to make a hiring decision based on the test,” he said.
Paul added that, if a case goes to court, it is likely that several of the jurors might have used a cannabis product within the last month, making it a difficult case to win.
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