By William E. "Rick" RobinsonWhen state and federal drug laws conflict, employers and employees alike can be left uncertain and confused.New policy guidelines issued by the Department of Justice in October don’t do much to clear the air when it comes to employers’ efforts to address the use of marijuana by their employees for medical purposes.The new guidelines advise federal prosecutors to dedicate resources to the prosecution of drug traffickers and other serious drug offenders rather than to medical marijuana users, caregivers and suppliers who conform to state laws. This is in stark contrast to previous DOJ guidelines, which countenanced the prosecution of medical marijuana users under federal law.The use, possession and cultivation of medical marijuana has been legal in California since 1996, when California voters enacted the Compassionate Use Act.The act’s impact on employers did not become an issue until 2008, when an employer terminated an employee using medical marijuana for chronic back pain after he tested positive in a mandatory pre-employment drug test.The employee sued, alleging that the employer failed to make reasonable accommodations for his disability under the Fair Employment and Housing Act.The California Supreme Court ruled that the employer was not required to accommodate the employee’s use of medical marijuana. The court emphasized that an employer cannot be forced to accommodate marijuana use, illegal under federal law, regardless of what state law may allow.The new DOJ guidelines do not change federal law – marijuana use is still illegal under federal statutes. The guidelines instead instruct prosecutors to focus federal resources on disrupting illegal drug trafficking and manufacturing networks, instead of prosecuting individuals who use medical marijuana in “clear and unambiguous compliance” with state law.What the new guidelines portend for workplace policies is unclear. Employers whose policies prohibit any type of illegal drug use may still view the court’s decision in the 2008 case as the foundation for such policies. Citing workplace safety concerns, for example, those employers may decline to accommodate marijuana use by employees and job applicants.Some employers may view the new guidelines as signaling more acceptance of medical marijuana use in the workplace and more deference to California law. In announcing the new guidelines, Attorney General Eric Holder stated: “This balanced policy formalizes a sensible approach ... while taking into account state and local laws.”Regardless of the change in the DOJ’s position on prosecution, employers should exercise extreme caution in fashioning medical marijuana use policies.In another recent case, a company claimed that it fired an employee because of his medical marijuana use. The employee alleged that he was fired when the company discovered he had cerebral palsy and that his use of medical marijuana was just an excuse to terminate him because the company did not want to accommodate his disability.This case necessitates a cautious approach on the part of employers when considering termination of an employee for medical marijuana use. Under California law, it is still the employee who carries the burden of proving that the underlying disability is the real reason for his or her termination.There is a balance between an employee’s right to privacy and the employer’s interest in maintaining a drug-free workplace. An individual’s right to privacy is guaranteed in the California Constitution. Also, the Confidentiality of Medical Information Act prohibits a patient’s health care provider from disclosing medical information and history to employers without the patient’s express consent.Nevertheless, employers can legally require pre-employment drug tests and access the results and may deny employment to those who test positive for illegal drugs even if prescribed by a doctor.There is an exception to this rule for pre-employment drug tests administered by a government employer. The Fourth Amendment limits government conduct and prevents searches and seizures, including drug tests, without individualized suspicion of wrongdoing or a special need.This special need must be substantial enough to override the individual’s privacy rights, such as a safety-sensitive employment position involving work which poses a danger to the public.California and federal laws generally permit an employer to prohibit drug and alcohol use in the workplace. However, regulation of such conduct must be balanced with privacy and other employee rights.Employers should strive to implement an effective workplace drug and alcohol policy that protects the rights of all employees. Careful consideration must be given before terminating or disciplining an employee for drug- or alcohol-related conduct. For employers, a measured approach in this murky area is the best prescription for success. •••William E. “Rick” Robinson is a partner in the Sacramento office of Best Best & Krieger LLP, where he is a member of the firm’s Labor and Employment Practice Group. He can be reached at 916-551-2093 or William.Robinson@bbklaw.com.