Pubdate: Fri, 17 Jan 2020
Source: Press-Enterprise (Riverside, CA)
Copyright: 2020 The Press-Enterprise Company
Author: Watchara Phomicinda


Three years after recreational marijuana was legalized in California,
it still casts a cloud over most job applicants.

Many employers in the state still require drug screening as a
prerequisite for hiring someone, experts in the hiring field say. And
while recreational use and possession are allowed for people 21 and
older, failing a drug test can still prompt an employer to toss a
resume into the reject pile.

But with 11 states now legalizing recreational marijuana use, there
are new perspectives that might be giving workers something of a break.

As of Jan. 1, Nevada became the first U.S. state to make it illegal
for an employer to discriminate against potential hires who test
positive for cannabis during a drug screening. Advocates of such laws
say that traces of cannabis in a person's blood does not mean he or
she is will be unable to perform certain work tasks.

In California, a high-profile Supreme Court decision in 2008 ruled
against a worker who used medical marijuana to treat a back ailment
and was fired from his job as a telecommunications system
administrator. The worker claimed the employer was discriminating
against him because of a disability.

A law that would have protected workers facing similar circumstances
was passed in the legislature but vetoed by Gov. Arnold Schwarzenegger
in October of that year.

Drug testing is still commonplace at most California companies, said
Vikita Poindexter, whose Temecula-based consulting firm handles human
resources operations and compliance issues for employers.

"They're still doing it, mostly because of concerns about opiates and
meth and other drugs," Poindexter said. "And, they'll test for
everything. While marijuana is legal in California, it's still illegal

She said that there is likely more attention paid to cannabis tests if
the job includes the use of heavy machinery. Not screening could
increase a company's legal liabilities in case of an accident and
could also raise their workers' compensation premiums.

Jonathan Judge, a partner and an employment lawyer with Cerritos-based
firm Atkinson, Andelson, Loya, Rudd & Romo, said few companies are
dropping drug tests during employee screening. He said one of his
clients, a firm with offices in multiple states that employs a large
sales staff, recently changed its position and stopped testing, but
that company is an exception.

Opponents of marijuana tests point out that finding traces of the drug
does not mean that the employee will show up for work impaired, or be
unable to do the job.

It remains a difficult issue, said Richard Paul, a founding partner
with San Diego law firm Paul, Plevin, Sullivan & Connaughton, who
teaches employment law at the University of San Diego School of Law.
Paul said federal agencies remain strict about screening because pot
use is a federal crime.

State agencies that rely on federal funding will test because they
don't want to be perceived as not in compliance, Paul said, and many
private firms with federal contracts think similarly.

However, because cannabis is legal and traces of it remain in a
person's body for a month, some employers are downplaying the value of
tests. If they make a decision based on pot use, it would more likely
be from observing on-the-job behavior, Paul said.

"Many employers say that, since it's legal, they're more reluctant to
make a hiring decision based on the test," he said.

Paul added that, if a case goes to court, it is likely that several of
the jurors might have used a cannabis product within the last month,
making it a difficult case to win.
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MAP posted-by: Matt