Drug Testing Question for LEO

[Tadich]

My company has a policy of drug testing all potential new employees. Prior to legalization of marijuana, a positive test was usually a "no-go" for hiring. Now that recreational use is legal it creates a dilemma for us. We now frequently see applicants testing positive at different levels of "intoxication."

So please correct me if I'm wrong, but even though the use of pot is now legal, a person can still be considered "under the influence" if caught driving. If that is correct, is there a level that LE looks at from blood tests (like .08 for alcohol) to be considered impaired by marijuana?

Thanks in advance and thanks for your service.

[elpaisa1]

Yes you can be arrested for driving under the influence of marijuana. To determine this police use field sobriety tests in addition to blood test to determine this. But there is no pre supposed limit like in alcohol.

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[RickD427]

My company has a policy of drug testing all potential new employees. Prior to legalization of marijuana, a positive test was usually a "no-go" for hiring. Now that recreational use is legal it creates a dilemma for us. We now frequently see applicants testing positive at different levels of "intoxication."

So please correct me if I'm wrong, but even though the use of pot is now legal(Wrong), a person can still be considered "under the influence" if caught driving. If that is correct, is there a level that LE looks at from blood tests (like .08 for alcohol) to be considered impaired by marijuana?

Thanks in advance and thanks for your service.

Tadich,

The California State Supreme Court has already addressed this question. Please refer to their decision in Ross v Ragingwire Communications.

Please note that the use of marijuana is not legal. California did remove state law criminal sanctions, but it still remains illegal under federal law.

[Tadich]

I appreciate your responses. This appears to be another no-win situation for employers. Thanks again.

[ugimports]

I appreciate your responses. This appears to be another no-win situation for employers. Thanks again.

Why? Can't the employer choose to deny pot users because it is still a drug, regardless? Your ability to use drugs, legal or illegal, doesn't guarantee your right to work in this state (yet).

[NYT]

Why? Can't the employer choose to deny pot users because it is still a drug, regardless? Your ability to use drugs, legal or illegal, doesn't guarantee your right to work in this state (yet).

yup, we fired a guy last thursday for showing up high to work.

one recent college grad no-showed, no-called on their first day to work after we let her know a drug test would be required.

[TRICKSTER]

My company has a policy of drug testing all potential new employees. Prior to legalization of marijuana, a positive test was usually a "no-go" for hiring. Now that recreational use is legal it creates a dilemma for us. We now frequently see applicants testing positive at different levels of "intoxication."

So please correct me if I'm wrong, but even though the use of pot is now legal, a person can still be considered "under the influence" if caught driving. If that is correct, is there a level that LE looks at from blood tests (like .08 for alcohol) to be considered impaired by marijuana?

Thanks in advance and thanks for your service.

Shouldn't be a dilemma. Marijuana use is still not legal under Federal Law. Is you company in the habit of ignoring Federal Laws?

[Tadich]

Understand that this is still a crime under Federal Law, we are just trying to set policy that will stand up to California Labor Law. In this instance it is a prospective employee that happens to posses a medical marijuana card. In my mind it's cut and dry... he's dirty so he doesn't get hired. Our HR Director is saying that it may not be that simple.

The reason for my inquiry was to see if there exists a "magic number" regarding blood tests that would be considered under the influence. From the responses received, I see that there is no such criteria at this point. We will end up taking the advice of our insurance brokers/carriers with regards to insurability to determine if we hire or not.

[larkja]

If it's a prospective employee, just inform him you decided to go with another candidate but thank him for his interest in the company. No reason necessary; no need to get legal involved. The candidate simply did not satisfy the requirements of the position.

A couple years ago, we interviewed a candidate that disclosed to us during the face-to-face interview that she had an mj card. She actually walked in smelling of pot. After the interview, we thanked her for her time and sent a polite follow-up e-mail informing her we were pursuing another candidate.

No need to give reasons. Employers are vilified enough in CA. You shouldn't give anybody additional ammunition.

[TRICKSTER]

https://www.legalmatch.com/law-library/article/california-laws-on-medical-marijuana-in-employment.html

[Tadich]

Thanks for the info and insight guys.

[Yodaman]

Why? Can't the employer choose to deny pot users because it is still a drug, regardless? Your ability to use drugs, legal or illegal, doesn't guarantee your right to work in this state (yet).

This is true.

[RickD427]

Understand that this is still a crime under Federal Law, we are just trying to set policy that will stand up to California Labor Law. In this instance it is a prospective employee that happens to posses a medical marijuana card. In my mind it's cut and dry... he's dirty so he doesn't get hired. Our HR Director is saying that it may not be that simple.

The reason for my inquiry was to see if there exists a "magic number" regarding blood tests that would be considered under the influence. From the responses received, I see that there is no such criteria at this point. We will end up taking the advice of our insurance brokers/carriers with regards to insurability to determine if we hire or not.

Tadich,

That's exactly the fact setting that was considered in Ross v Ragingwire. It's a settled issue. Has your HR director either read, or has been briefed, on the Ragingwire decision?

Intoxication and usage are different subjects. Intoxication is transitory. Measuring the level of marijuana intoxication is still an evolving subject. Here is a good reference: https://www.nhtsa.gov/sites/nhtsa.do...o-congress.pdf

But in the employment context, I would think that your company would be much more concerned with issues of usage rather than if a person is "intoxicated" at any particular moment.

[Yodaman]

Tadich,



That's exactly the fact setting that was considered in Ross v Ragingwire. It's a settled issue. Has your HR director either read, or has been briefed, on the Ragingwire decision?



Intoxication and usage are different subjects. Intoxication is transitory. Measuring the level of marijuana intoxication is still an evolving subject. Here is a good reference: https://www.nhtsa.gov/sites/nhtsa.do...o-congress.pdf



But in the employment context, I would think that your company would be much more concerned with issues of usage rather than if a person is "intoxicated" at any particular moment.

This [emoji1369]