27 Jun Medical Marijuana in the Workplace: You’re Fired (or Not Hired)!
Question of the Day
A new hire tested positive for marijuana. May we fire him even though he has a medical marijuana card, and to our knowledge, has not been under the influence while working?
Yes, you may. California employers may enforce drug and alcohol free workplace policies, which includes prohibitions on marijuana. They are not required to permit or accommodate marijuana use, even if an employee has a medical marijuana card.
You see, when California passed the Compassionate Use Act (UCA) in 1996, allowing marijuana use for medical purposes, and then Proposition 64 in November 2016, legalizing adult recreational use of marijuana, these laws merely exempted users from criminal liability; nothing in these laws required California employers to permit or reasonably accommodate marijuana use.
In fact, Proposition 64 expressly allows employers to maintain drug and alcohol free workplace policies, including bans on marijuana use, consumption, possession, transfer, growth or sale in the workplace. And, back in 2008, our California Supreme Court allowed an employer to fire an employee who tested positive for marijuana even though he was prescribed marijuana for medical purposes under the UCA. Also, marijuana is still illegal under federal law, which employers must follow. In addition, an employer is not required to allow medical marijuana use as a reasonable accommodation under the California Fair Employment and Housing Act.
Moreover, employers have valid reasons for keeping their workplaces drug and alcohol free, including safety concerns.
What to do if an applicant or employee is not “under the influence” at work, yet tests positive for marijuana?
One difficulty around marijuana testing is that THC, the psychoactive compound tested for in a marijuana drug test, stays in a body’s system for weeks after usage. Thus, an applicant or employee may test positive even though he or she legally used marijuana for medical or recreational purposes, away from work, days or weeks before being tested. Such persons would be subject to rescission of their employment offer or firing, consistent with your drug and alcohol free workplace policy and practice.
Some last thoughts.
(1) Policy review and dissemination
You should review your drug and alcohol free workplace policy, and make sure it specifies that marijuana is prohibited under the policy. Inform your applicants and employees of this policy, and that any testing (including pre-employment and testing of current employees) will include testing for marijuana, and that they may be fired if they test positive for marijuana, even if they are have not been “under the influence” at work and/or have not used it recently.
(2) Pre-employment testing
California employers are allowed to conduct pre-employment drug testing and may deny employment (or fire a new hire) if a test comes back positive for marijuana, even if the person is not “under the influence” at work. If you conduct pre-employment testing, remember to do so only after you make a conditional offer of employment (i.e., conditioned on passing a drug test).
(3) Testing of current employees
California employers are allowed to drug test current employees if they have a “reasonable suspicion” that an employee is under the influence of alcohol or drugs, and they may test randomly, or for other reasons, in limited circumstances, and may fire an employee who test positives for marijuana, even if the employee is not “under the influence” at work. Due to the privacy rights of employees, the conditions under which an employer may drug test a current employee are complex and beyond the scope of this blog. Employers should consult with counsel before implementing a drug testing policy.