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Marijuana Legalization by State.
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Our intent is to make California drug screening compliance as simple as possible. You don’t have to be a constitutional law scholar to conduct workplace drug testing in California.
California is a “mandatory” state. This means any private employer wishing to meet California drug screening compliance and alcohol compliance while conducting drug and/or alcohol testing of non-regulated employees within this state must do so according to the state constitution, statutes, regulations, local ordinances, and court decisions that apply (the rules).
This overview is to introduce you to the nature and history of California’s workplace drug testing rules and to provide a basic understanding of the drug screening and alcohol testing compliance issues you may face when testing in this state.
1025. Every private employer regularly employing 25 or more employees shall reasonably accommodate any employee who wishes to voluntarily enter and participate in an alcohol or drug rehabilitation program, provided that this reasonable accommodation does not impose an undue hardship on the employer.
Nothing in this chapter shall be construed to prohibit an employer from refusing to hire, or discharging an employee who, because of the employee’s current use of alcohol or drugs, is unable to perform his or her duties, or cannot perform the duties in a manner which would not endanger his or her health or safety or the health or safety of others.
1026. The employer shall make reasonable efforts to safeguard the privacy of the employee as to the fact that he or she has enrolled in an alcohol or drug rehabilitation program.
1027. Nothing in this chapter shall be construed to require an employer to provide time off with pay, except that an employee may use sick leave to which he or she is entitled to the purpose of entering and participating in an alcohol or drug rehabilitation program.
1028. An employee may file a complaint with the Labor Commissioner if he or she believes that he or she has been denied reasonable accommodation as required by this chapter. Sections 98, 98.1, 98.2, 98.3, 98.4, 98.5, 98.6, and 98.7 shall be applicable to a complaint filed pursuant to this section.
Magic Mushrooms: On June 11, 2019 the city of Oakland, CA has decriminalized magic mushrooms. This took several speakers that supplied information showing that psychedelics helped them overcome things like drug addictions, and post-traumatic stress disorders. There will be more information available a year from now after the city administrators provide assessments that the laws that has impacted the community. Magic mushrooms remain illegal under federal and state law.
Q1. Can I do a random testing for my employees in San Francisco? Yes:
Answer is “No”.
City of San Francisco
San Francisco Ordinance Section 3300A.5 was established in 1985. (See APPENDIX “B”). The local ordinance prohibits an employer from conducting random drug testing but does allow testing when the employer has “reasonable grounds” to believe an employee is impaired on the job and that employee is in a safety sensitive position.
Q2. Can I do a random testing for my employees in Berkeley? Yes:
City of Berkeley
The Berkley Resolution No. 54,533-N.S., Chapter 8 entitled “Drug Testing” enacted in 1988 states as follows:
“Drug testing of employees shall be prohibited, where lawful, within the City limits, as this mandatory testing presupposes an employee’s guilty until proven innocent, and violates an employee’s constitutionally guaranteed right to privacy. This ban includes drug screening as a condition of employment as well as any type of random drug screening at the discretion of the employer or supervisor.”
There may have been a limited amendment to the resolution that allows for reasonable suspicion testing, post- accident testing, and post-use of force testing for city employees. The measure appears to address more recent issues surrounding police and firefighters. Please see the state Employer’s Marijuana Guide in the Encompass Resource Center for more details.
This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.
All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.
Medical Use: Voters approved the Compassionate Use Act of 1996; effective upon passage. This act was approved by 56% of the voters using California’s referendum system. On January 21, 2010, the California Supreme Court found a portion of SB420 that limited the amount of marijuana a qualified patient could possess to be unconstitutional.
Employee Discipline: In 2008 the California Supreme Court ruled that the Compassionate Use Act does not apply to the employer-employee relationship and employers are not required to accommodate medical marijuana use by employees.
Personal Use: On November 8, 2016, Proposition 64, known as the Adult Use of Marijuana Act passed by a margin of 57.1%. (A margin greater than medical marijuana was in 1996). The law specifically provides that employers have the right to maintain a drug and alcohol-free workplace and does not require an employer to accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace. The law further states that it does not affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.
Magic Mushrooms Use: On June 11, 2019 the city of Oakland, CA has decriminalized magic mushrooms the city administrator has a year to supply laws that will impact the community.
For more information regarding marijuana at work refer to Info Cubic’s Drug Screening compliance corner.
Hill v National Collegiate Athletic Association, 7Cal. 4th 1, 865 P.2d 633 (CA S.Ct. 1994).
The first case where CA Supreme Court interpreted the Privacy Initiative. Limits private employer action.
Loder v. City of Glendale, supra, 14 Cal. 4th at pp. 893-894; Smith v. Fresno Irrigation District, 72 Cal. App. 4th 147 (1999).
Across the board, suspicionless testing of all current employees must be subject to the balancing test. Such across the board suspicionless tests are ok for applicants.
Smith v. Fresno Irrigation District, 72 Cal. App. 4th 147 (1999)
The balance of interests permits random testing where work environment and job duties are safety sensitive.
No definition of “safety sensitive” exists but here employer showed the particular job and work constituted as such.