Caltrans fired a dad over a marijuana pee test. Here’s why that won’t happen again

A new California civil service rule limits the use of urine cannabis tests in disciplining state workers, finding that pee samples do not accurately reflect whether an employee is intoxicated at work by a drug voters legalized.

The State Personnel Board issued a “precedential decision” in a case filed by a Caltrans worker contesting the department’s move to dismiss him over a urine test. The ruling says that merely testing positive for past marijuana use should not be grounds for discipline or dismissal for most public employees.

The decision does not apply to police or certain other professions where employees are prohibited from using drugs.

The State Personnel Board, which oversees California’s civil service rules, noted that a urine test only denotes that a person has consumed marijuana in the past. It does not indicate that the person is intoxicated at work.

“Under these circumstances, a positive urinalysis test for marijuana, without more, does not justify discipline under any of the charges in the (Notice of Adverse Action),” the board ruled.

Californians in 2016 voted to legalize adult recreational use of marijuana. However, many employers, both public and private, have continued to test for marijuana use as a condition of employment.

State lawmakers considered a bill earlier this year to put a stop to those tests. That bill has yet to have a committee hearing, but is being considered as a two-year bill.

The personnel board on March 4 ruled that the prohibitions against “safety sensitive employees” using marijuana should only applies to employees who are either on duty or on standby for duty. The decision recently posted to the board’s website.

“The board notes that it does not take a position on whether using marijuana is a good thing or a bad thing. The voters have spoken and legalized it in the State of California. Given that reality, state agencies are powerless to discipline employees, like (Harper), whose test showed only that marijuana had been ingested or used sometime in the past, but that (Harper) was not under the influence of marijuana while on duty,” the board ruled.

In so ruling, the board upheld an administrative law judge’s decision in the case of a state highway maintenance worker who was terminated from his position after a urine test came back positive for past marijuana use.

The worker, Darrin Harper, had returned to work in July 2020 after two months off to care for his children during the COVID-19 pandemic.

Under state rules, Harper was required to submit to a urine test because he was away from work for an extended period of time.

Harper tested positive for marijuana use and was dismissed from his position on July 27, 2020. Harper denied consuming marijuana, saying that he had been exposed to second-hand smoke. A doctor who reviewed Harper’s test results testified that exposure to second-hand marijuana smoke would not cause a positive test result.

Though the administrative law judge who handled Harper’s appeal found his testimony not to be credited, “aside from adverse admissions and uncontroverted facts,” she ultimately ruled in his favor, writing that, “testing positive for marijuana on one occasion following a two-month leave of absence from work does not, alone, indicate that (Harper’s) continued employment poses such an intolerable risk of danger that he must be dismissed from state service.”

The administrative law judge ordered Harper’s dismissal to be reversed, and awarded him back pay that would have been accrued to him had he not been dismissed.

This story was originally published June 14, 2021 at 5:00 AM with the headline "Caltrans fired a dad over a marijuana pee test. Here’s why that won’t happen again."