Drug Crime Attorneys Serving Los Angeles
On November 8, 2016, California voters passed Proposition 64, which legalized the recreational use of marijuana by adults over 21. Many would-be recreational users are now facing a problem that has plagued medicinal marijuana users for years: workplace drug testing.
Marijuana is stored in the body’s fat cells and can be detected in drug tests long after ingestion.
This creates a concern for workers who wish to use recreational marijuana but whose workplaces prohibit the use of marijuana. Even if the employee uses marijuana off the job, and is no longer experiencing any effects from the drug when at work, a drug test can be positive for the substance.
Unfortunately, this dilemma is all too familiar for California’s medicinal marijuana users.
Marijuana Use & Your Job
Employment in California is “at will,” meaning that, absent an employment contract stating otherwise, employees can be fired for any reason, or no reason at all. There are few exceptions, most notably that employees who are members of a protected class cannot be fired for a discriminatory purpose. For example, a person cannot be fired based on their gender, race, or religion. Marijuana users — even medicinal users with a doctor’s recommendation — are not a protected class.
In 2008, the California Supreme Court held that the Compassionate Use Act, allowing medicinal marijuana use, does not apply to employers, and employers can legally base employment decisions — such as hiring and firing — on illegal drug use, noting that marijuana is illegal under federal law. The Court held that employers could not be required to allow medicinal marijuana use as a reasonable accommodation for a disability because it is illegal under federal law.
While that case examined medicinal marijuana use, the holding will apply to recreational use. Additionally, Proposition 64 specifically states that both public and private employers can prohibit drug use, including marijuana. It also allows employers to test for marijuana.
There are some protections for employees. Under California law, employers who do pre-employment drug testing must test all applicants. They cannot single out specific applicants for testing. To drug test an employee, an employer must have a reasonable suspicion that the employee is under the influence. Employees can also be drug tested if they are involved in an accident or federal law requires the testing. Random drug testing is generally only allowed for safety-sensitive jobs.
Ultimately, workplace drug testing is a real risk that recreational marijuana users must consider. While Proposition 64 decriminalized marijuana, it did not provide employment protections. Unless the state passes a law protecting marijuana users, those users must weigh the potential employment consequences when deciding whether to use marijuana recreationally.