California's about to make cannabis legally available to everyone. Here's how employers can deal with it.

On January 1, 2018, anyone in California will be able to buy cannabis, legally, as long as they’re over 21 years of age.

But, it’s not quite that simple.

“The problem that California employers will have … is you have a state law that allows uses for recreational purposes, but of course you still have the federal law that makes it illegal,” said Michael Kalt, partner at law firm Wilson Turner Kosmo and government affairs director for the state council of the Society for Human Resource Management organization.

Like several states before them, California will find itself in the unique position of offering a product legally that remains illegal at the federal level. This affects few people more than employers, as they work to find a way to incorporate this position into their employment screening process.

Californian businesses have a decision to make…

They could follow Colorado’s lead, where marijuana testing by employers has slowly declined over the past two years, since cannabis was made legal. In that time, 7% of the state’s employers dropped it from pre-employment tests while 3% removed it from all employment drug tests, according to results of a December 2016 survey by the Mountain States Employers Council.

Or, they could take the route of companies like Boeing, Co., who maintain their Drug Free Workplace policy, leaving cannabis prohibited even in states where it’s legal.

Mostly, it should be a case-by-case situation, though.

Companies in “safety-sensitive” transportation industries, that deal with heavy machinery, work with the federal government, and where employers work with vulnerable members of society (such as children) should think more carefully about whether they want to loosen policies. With loose policies, the risk of litigation when mistakes are made increases.

Ultimately, if employers decide against a zero-tolerance policy on marijuana, employers should assess a candidate’s ability to perform the required job functions and review whether a reasonable accommodation is applicable or required by federal and state disability rights laws. Consult with experts familiar with your organization and its industry to review a drug-testing policy or create one with specific language on marijuana.

If you’re a Californian employer and have questions about how to deal with the new law, our team can help.

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