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Asking too much could trigger privacy violations

NORTH BAY – Regardless of how an employer personally feels about the use of medical marijuana, they should do their best to steer clear of the sticky legal scenarios that can crop up with employees, say employment law experts in the North Bay.

But while complications can arise if an employer wants to prohibit pot in the workplace, their hands aren’t completely tied.

“I think there is this misconception that it’s legal, so there isn’t much [employers] can do about it,” said Dawn Ross, a partner and litigator at Carle, Mackie, Power & Ross in Santa Rosa, who added that she receives regular inquiries on the topic. “It’s moving more and more to the forefront. Usually when people call me it’s because they’re very confused. The questions is not whether people are smoking during off hours, it’s whether they are coming to work impaired.”

Senate Bill 129, sponsored by Sen. Mark Leno, D-San Francisco, is currently working its way through Sacramento and could help clarify matters.

But in the meantime, employers need to tread carefully when inquiring about or responding to the use of medicinal marijuana by employees, said Richard Rybicki, principal counsel at Rybicki & Associates, a management-side labor and employment law firm in Napa.

In 2005, the California Supreme Court decided a case that sought to clarify definitions in the debate on medicinal marijuana. The case, Ross vs. Raging Wire, said that employees could engage in lawful behavior outside of work, medicinal marijuana included.

There is consensus that lighting up in the workplace is prohibited, Mr. Rybicki and Ms. Ross said.

But issues could still come up, however.

“Now that the dust has settled, other issues come up,” Mr. Rybicki said. Specifically, an employer may discover something personal or protected if they go too far in their inquiries.

“If you discover a person is using marijuana and you press too far, you may inadvertently discover some underlying medical issue and then you expose yourself to other claims,” like the Americans With Disabilities Act. “Secondly, what duties do you have to protect medical information? You have this host of issues, notwithstanding the marijuana.”

The Senate Bill would “declare it unlawful for an employer to discriminate against a person in hiring, termination, or any term of condition or employment.” But the bill “would not prohibit an employer from terminating the employment of an employee who is impaired on the property or premises … or during the hours of employment, because of the use of marijuana.”

Greg Walsh, a director for Dickenson, Peatman & Fogarty’s Santa Rosa office who specializes in employment law, said that SB 129 likely wouldn’t alter matters too much, but he still cautioned employers to proceed with care.

“They have to look at the bigger picture,” he said. “To the extent that an employee is under the influence, the employer has to make the workplace safe for everyone.”

He, like others interviewed for this article, said the issue comes up frequently.

“It still comes up all the time, particularly here in the North Bay,” he said, adding that it tends to be employers with fewer than 50 employees who inquire regularly.

The matter could become further complicated if an employer deals with federal contractors, Mr. Walsh said, because of the differing federal laws.

Mr. Rybicki said the issue could deter employers from requiring drug tests, for the same reason that employers can’t press too hard about what may be prohibited at the work place but permitted at home.

“It’s going to make it difficult,” he said. “It is probably a disincentive for employers to drug test, because it would do the same thing. It will put employers in a position that they will get information they don’t need to know, say about a disability, and it will put them in a tough spot. The general rule is that you can’t ask questions that are likely to elicit information that is part of a protected activity.”