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Prior to 2016, it was illegal under state law to use marijuana recreationally — no matter how small the amount. Though things have changed significantly in California, and recreational use of marijuana is now legal under state law, there are still a lot of things employees need to consider when it comes to work place drug testing and job protection.

This article was written to unpack some of the issues surrounding marijuana use as it relates to California employment law. As a firm that primarily represents employees in employment disputes, it’s our job to protect workers. If you feel you’ve been treated unlawfully by an employer, give our office a call so that we can review the basic facts of your case.  Our office regularly handles discrimination, harassment and wrongful termination cases.

Marijuana Legalization and California Employment Law

In 2016, Californians voted to approve Proposition 64, which amended sections of the state’s Penal, Business, Health and Tax Revenue codes. It is now legal for adults over the age of 21 to possess marijuana for recreational use. Use of marijuana for medical purposes, with the approval of a doctor, has been legal in California since 1996. 

With California now taking such a seemingly permissive attitude toward marijuana use, one might think that employers are legally required to give a pass to workers who smoke a little pot in their free time. After all, alcohol is legal, no one gets fired for enjoying a beer or two after work, right? Unfortunately, it’s not that simple.

The first thing that must be mentioned is that while recreational marijuana use is legal under California state law, it is still illegal under federal law. Alcohol doesn’t have that hiccup. While drug tests can determine if a person is under the influence of alcohol, booze leaves the system much faster than marijuana, which can remain in a person’s system at detectable levels for a month or longer. 

It’s completely legal for a California employer to fire an employee for recreational drug use.

Branigan Robertson

The second thing that people should know is that it is completely legal for an employer to fire an employee for legal recreational drug use. If the employer finds out that you are a user, they can fire you.

This is similar to when an employer fires someone for posting racist views on social media. It’s completely legal for you to be racist on your own time when you’re at home, but employers are allowed to fire people who have views like that. Why is this the case? Because CA (like many states) has the at-will doctrine. Due to the at-will doctrine, employers are allowed to fire employees for any reason except for reasons specifically deemed unlawful by CA’s legislature and court decisions. 

While there is reason to suspect that some companies have relaxed zero tolerance marijuana policies in the wake of Proposition 64, workers should not to assume their employers will automatically give employees who enjoy marijuana a pass.

Drug Testing and an Employee’s Right to Privacy

First and foremost, companies are allowed to drug test their employees. This is a practice that courts have upheld for years. However, in California, courts also acknowledge employee privacy. There are also anti-discrimination laws designed to protect employees.  

When and why a company decides to require employee to submit to a drug test can greatly affect whether a company runs afoul of the law.

At the core of the issue is how much privacy an employee is entitled to weighed against a company’s need to know the status of an employee’s drug use.

For instance, companies are generally allowed to drug test applicants prior to a job being offered. This is because an applicant’s right to privacy isn’t weighed as heavily as a long-term employee whose track record is well known to the company.

While random drug testing of existing employees can be a sticky issue for employers, there are certain industries where workers can expect to submit to random drug tests. Such industries include the airline or transportation industry. 

In other industries, customer service for instance, an employer would generally need a good reason to ask an employee to submit to a random drug test.

That said, state and federal law prohibits companies, with few exceptions, from singling out groups of people based on protected characteristics. This is important when it comes to how drug tests are administered to employees in the work force. Keep reading to learn more about workplace discrimination.

When Drug Testing Targets Certain Groups

California’s Fair Employment and Housing Act (FEHA) protects certain classes of people against workplace discrimination. Such protections prohibit discrimination based on gender, sexuality, race, national origin, pregnancy status or military status. 

As such, an employer can’t require random drug tests of only certain groups of employees while not applying the same standards to other groups of employees.  Furthermore, an employer who requires a worker to submit to a drug test because of membership in a protected class is engaged in unlawful behavior.

For instance, if a manager decided to test only the military veterans in the company because he read an article once stating that some veterans struggle with drug abuse, then that manager could potentially land the company on the hook for damages—particularly if an employee is terminated because of the discriminatory action.

If you believe you were required to take a random drug test because you are a member of a protected class, contact our office to schedule a consultation.

What About Employees Prescribed Medical Marijuana?

What about employees who are prescribed marijuana due to a disability?  Disability is a protected class, right?

Ironically, a 2008 California Supreme Court case found that employers can terminate employees that use medical marijuana, even if the marijuana has been prescribed by a doctor. The court reasoned that because the federal government, specifically the Americans with Disabilities Act, excludes protection for “any employee or applicant who is engag[ed] in the illegal use of drugs.” 

The state high court further argued that federal law has rejected the proposition that “marijuana has acceptable uses for medical treatment…” As a result, discrimination based on the use of medical marijuana “cannot be considered sufficiently substantial and fundamental to support a common law tort claim for wrongful discharge.”

When considering this, it’s important to keep in mind that employment law is complex, and there are many aspects to consider in a disability or wrongful termination case. The only way to know if you have a case, is to contact an employment lawyer.

If You Have Concerns, Contact a Lawyer

It’s important to note that attitudes toward medical and recreational marijuana continue to evolve. The best way to determine if you have been treated unlawfully by your employer is to contact a lawyer to review the facts of your case.

Though there are situations where employees can rightfully be subject to random drug tests and terminated for marijuana use, a good attorney can examine the facts of a case and determine if a company has acted unlawfully. An employee who is wrongfully terminated can potentially collect lost wages, back pay, pain and suffering damages, and in rare cases, punitive damages. 

If you feel you were unfairly targeted at work and required to take a drug test because you are a member of a protected class, contact the office of Branigan Robertson to schedule a consultation. Mr. Robertson won’t charge to review the basic facts of your case. If it turns out you have a case worth pursuing, our office often handles cases on a contingency basis. This means you don’t pay out of pocket fees.