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Local seminar demonstrates widespread confusion over marijuana and employment law

CHICO — The complexities and confusion around California’s new recreational cannabis regulations were obvious during Wednesday’s employers seminar, put on by the Chico Chamber of Commerce.

With more than 90 registered, questions were varied, and anxiety sometimes obvious.

The message from consultant Adrian Hoppes of Holden Law Group of Auburn is that there are clear steps that employers can take to protect their company and employees.

One statement that made attendees gasp was that any workplace can continue to be a drug free zone, with no need to accommodate cannabis use of any employee — medical or recreational — as long as the rules are applied equally to everyone.

Employers can still have a drug-free workplace, Hoppes said.

“They can forbid medical and recreational use,” she said. “Employers do not have to accommodate use of marijuana in the workplace.”

At the top of her recommendation list is for every workplace to have a clear policy regarding drugs in the workplace, and to make sure all employees know it.

It’s not only having a binder or poster displayed but making all employees read and sign the policy.

Even before an employee comes on board, awareness about the employer’s policy can be set. An employer, Hoppes said, can require a drug test after a job offer has been made, but not before. If the drug test shows evidence of marijuana, the offer can be withdrawn without penalty.

Once someone has been hired, an employer needs to be more careful not to single out someone without cause. Companies “should not do random drug testing,” but can prohibit possession and being under the influence, Hoppes explained. Random testing is allowed for businesses governed by the Department of Transportation regulations.

“Reasonable suspicion” can be the foundation for an employer’s action, but Hoppes warns that great care needs to be taken in gathering evidence.

Hoppes said she discourages an immediate reaction of finding marijuana use occurring after an accident and termination. She said Occupational Health and Safety Administration found that employees were not reporting worker compensation injuries after using marijuana because of the threat of testing.

Helping employers support testing are a list of suggestions that build a case under “reasonable suspicion” or as she explained what would lead a reasonable person to believe an employee is under the influence.

“Establish reasonable suspicion before sending anyone to testing,” she said.

The basis is how they are performing their job. “Focus on performance.” If they are having difficulties, talk to them. Ask they how they’re feeling or what’s happened to prevent them from doing their job.

Do they smell unusual? Are they having problems speaking or walking? Is someone else at the business able to chronicle their problem as well?

Hoppes said it could be that the employee implicates themselves voluntarily, especially if they believe the law shields them through privacy or medical marijuana use.

If an employer can fulfill these suggestions, Hoppes said they can require testing, but need the employee to be driven to the testing facility.

Businesses that have federal contracts or or have federal revenue must still be drug free because marijuana is still illegal at federal levels.

“You have to make sure that employees understand they can’t smoke or use.”

There should be a written zero tolerance policy that puts all employees on notice. The message needs to be clearly stated and repeated, and the policy signed.

Employers are concerned about difficulties they may face, so Hoppes said, “Spend that $100 and call an HR company. It’ll be cheaper than a lawsuit.”

Copies of the slides from the presentation can be requested from the Chico Chamber at 891-5556.