Learning Objectives. What Can Employers Do?

Transcription

1 1 Drug Testing and Smoking Bans: Tips and Legal Limits for Controlling the Use of Marijuana, E-Cigarettes, and More Karina B. Sterman, Esq. Partner Greenberg Glusker LLC Los Angeles, CA Learning Objectives This presentation will teach you the following: What can you do as an employer with respect to employee drug testing generally and with respect to testing specifically for marijuana, now that it is legal in California? What can you do as an employer to comply with California s workplace smoking ban? Once you know what you can do, make decisions about what you should do as an employer with respect to drug testing and maintaining a no-smoking workplace. 2 What Can Employers Do? 3

2 4 Drug Test: Generally Pre-Employment Drug test all applicants for unlawful controlled substances. Drug test only applicants for certain positions for unlawful controlled substances. Drug Test: Generally During Employment If required by statute, engage in regular on-the-job testing, including periodic random testing. Unless expressly required or permitted by an industry specific statute, only drug test when there is reasonable suspicion to do so, AND, on balance, employer interest in workplace safety outweighs employee s strong privacy rights. Always use least intrusive means to minimize violation of privacy rights. 5 Drug Test: For Marijuana Specifically Marijuana is an unlawful controlled substance under federal law, whether medically prescribed or not. There are no exceptions. Despite the legal use of prescription and recreational marijuana in California, employers in the state are expressly permitted to prohibit employee marijuana use. Employers can therefore test for marijuana to the same extent as for any unlawful drugs. 6

3 7 Prohibit smoking of tobacco products at place of employment AND in enclosed spaces. Tobacco Products means: A product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, or snuff. An electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah. Any component, part, or accessory of a tobacco product, whether or not sold separately. 8 Enclosed Spaces includes covered parking lots, lobbies, lounges, waiting areas, elevators, stairwells, and restrooms that are a structural part of the building, subject to certain very limited exceptions. 9

4 10 Smoking prohibition applies to employees and non-employee visitors. Implement disciplinary measures for violations of the smoking ban. NOTE: Smoking is lawful off-duty conduct, so do not make non-smoking a condition of employment (CA Labor Code 96k). What Should Employers Do If They Decide to Drug Test? 11 Know Your Why Are you interested in maintaining a certain business reputation? Are you predominantly hiring a blue collar workforce that requires manual labor? Are you interested in recruiting millennials? Is your primary concern hiring the most qualified candidate? 12

5 13 Determine Who Will Be Tested All applicants? Limited to applicants for some positions only? All current employees? Limited to employees in some positions only? Remember that even in CA, recreational marijuana use is prohibited for people who are under 21. Determine Who Will Do the Testing Establish a relationship with several local labs. Be clear on what substances are being tested for. Be clear that you do not want to know about lawful prescription medicines, other than perhaps marijuana. Pay for the testing. 14 In Cases of Applicant Testing... Provide applicants with a clear expectation in writing of the requirement for a pre-employment drug test. Make the employment offer contingent on it. Be clear about what substances you re testing for. 15

6 16 In Cases of Current Employee Testing... Provide employees with a clear written policy about the company s expectations and intent to drug test. Be clear about what substances you re testing for. Identify triggers for testing. Articulate consequences of violating drug policy and of refusing to submit to drug testing. Be wary of creating claims for invasion of privacy, disability discrimination and wrongful termination in violation of public policy. In Cases of Current Employee Testing... Employers with 25 or more employees must also reasonably accommodate employees who voluntarily enter a drug (or alcohol) rehab program. Time off without pay Proof of successful completion Reinstatement No retaliation 17 What Should Employers Do to Comply with California s Smoking in the Workplace Law? 18

7 19 What Should Employers Do to Comply with California s Smoking in the Workplace Law? Post No Smoking signs throughout public and employee-only areas. Circulate written employment policies that prohibit smoking tobacco products and not just traditional cigarettes. Articulate the consequence for violating the policy. Enforce the policy consistently. Thank you. Questions? ksterman@greenbergglusker.com In order to receive your continuing education certificate(s) for this program, you must complete the online evaluation. The link can be found in the continuing education section at the front of the program guide. 20