Drug- and Alcohol-Free Workplace Policy

Notwithstanding the decriminalization of marijuana use in this state, California employers are within their rights – and right minds – to establish and enforce strict rules on employee use, possession, and/or sale of illegal drugs, controlled substances and alcohol.

Policy elements can include:

●  Requirement that all employees be fully sober and straight throughout their entire workdays;

●  Clear definition of “illegal drugs” or “controlled substances” to include recreational marijuana, medical marijuana, or any substances containing THC (marijuana’s mind-altering ingredient);

●  Company prerogative to immediately terminate an employee for violations, including while on company or customer premises, while operating any vehicle on company business, or while operating a company-owned or -leased vehicle at any time;

●  Similar prerogative to terminate an employee for an employee’s guilty plea or criminal conviction for illegal sale or possession of any controlled substance;

●  For an employee arrested on drug-related charges, company option to suspend without pay until the charges are resolved;

●  Provision for the legal use of prescribed drugs or over-the-counter medicines so long as they do not  adversely affect the employee’s ability, job performance, or the safety of the employee or others;

●  Rule that if an employee is aware that his/her use of permitted medication adversely affects his/her ability, job performance, or the safety of the employee or others, he or she must inform the supervisor of this condition prior to beginning work;

●  Caution that if the employer, in its discretion, finds the ingestion of permitted substances appears to be preventing an employee from performing his/her work, with or without reasonable accom­modation, company may direct that employee to see a doctor at its expense; company may then direct the employee to take a leave of absence without pay if doctor judges the legal substance is preventing safe and effective work performance;

●  Clear criteria for company-required drug and alcohol testing in compliance with California’s differing standards for pre-hire and post-hire circumstances.  For example, as long as an employer applies the policy consistently, it may condition offers of employment on applicants passing a substance test.  Rules for required post-hire testing must match this state’s directives balancing individual privacy with company necessity to protect the health and safety of its workforce and the public;  and

●  Notice that an employee’s refusal or failure to submit to mandatory testing may lead to disciplinary action, including termination.

Take-Away:

Ensure an updated and California-compliant drug and alcohol policy as part of a comprehensive, clearly written handbook.

We publish this series to educate employers on best practices for a well-written handbook that  assists applicants, employees, and management alike. To purchase our template handbook and accompanying forms or for more information, please contact Office Manager Aimee Rosales at 626.583.6600 or email her at officemgr@tbowleslaw.com.

See also:

• Happier and Healthier – Workplace Policy Handbook & Forms for 2022 (April 29, 2022)
• Drug And Alcohol – Free Workplace Policies – No Exception for Cannabis(September 3, 2021)
• If It Isn’t Written, Workplace Policy is Anyone’s Guess (November 1, 2018)
• Banning Weed in the Workplace – California Employers May Maintain Drug- and Alcohol-Free Policies (January 18, 2018)

Tim Bowles
August 5, 2022