For years employers have exercised "zero tolerance" drug policies, meaning that they could legally choose not to hire, or to fire, an employee who tested positive for any drug, including marijuana. Now, their conundrum is how do you tell someone they cannot do something that is legal? The answer is simple. You can't. This is what has left some employers in what they can only describe as "a mess."
In a recent article, the owner of Rye Electric, an Orange County business, discussed these issues. He received applications from a lot of excellent candidates, but after California legalized marijuana, they could not pass a drug screen. This forced him to take a look at, and ultimately amend, his company drug policy. While he cannot legally fire an employee for testing positive for marijuana, he can require that it not be used on the job. Even still, proving that a person used 10 minutes ago versus yesterday is impossible by a simple drug screen. THC can show up in urine or hair samples for some time after a person has ingested it.
For this owner in particular, the legalization of marijuana has affected his business. He has been forced to make the choice to steer away from public works and school jobs because they maintain strict no-drug mandates. He cannot guarantee that his employees could meet that standard. Therefore, he feels that it is better to not place his company at risk. Employees who feel they have been discriminated against due to legal marijuana usage may benefit from getting more information about employment discrimination laws.