Drug Testing After Marijuana Legalization

Posted on December 22, 2018 | Omid Nosrati | Wrongful Termination

California recently legalized the use of recreational marijuana, and now the state is one of a handful that allows citizens over the age of 21 to possess, grow, and use certain amounts of marijuana. On the other hand, marijuana is still a controlled substance and federal law prohibits its possession. Additionally, employers are free to create their own policies that prohibit its use. Knowing how employers can handle the legalization of recreational marijuana can help employees understand their rights and responsibilities.

Employee Rights Involving Marijuana Use

Marijuana use may be legal, but employers still have the option of creating policies that prohibit its use, especially since its use is still illegal under federal law. A 2016 law that legalized cannabis use also states that employers can rightfully deny employment to anyone who fails a drug test. However, that stipulation only applies to recreational cannabis, not medical use.

A 2008 California ruling gives employers the right to fire medical marijuana patients for failing a drug test. However, a new bill aims to change all of that. A proposed law aiming to protect medical marijuana patients from losing their jobs recently passed its first hurdle. In April, the legislation made it through its first committee meeting, but whether it will become law remains uncertain.

If passed, the law would prohibit employers from denying employment or firing workers for testing positive for marijuana, as long as those employees have a valid medical marijuana card. The bill’s author, Rob Bonta, looks at it as a matter of civil rights. In his view, medical marijuana patients deserve the same rights as those who take pharmaceutical drugs. Companies would not deny employment to someone who takes medications for a genuine medical condition, as this would be discrimination. Why should medical marijuana be any different?

The provisions of the bill stipulate that employers would have to make reasonable accommodations for employees who legally use medical cannabis. In a legal sense, a reasonable accommodation is one that an employer makes to allow an employee to complete the essential aspects of his or her job. However, employers could still terminate a medical cannabis user if they could prove that the employee did not fulfill essential duties, even after reasonable accommodation. It also does not protect employees who come to work under the influence of cannabis, and it does not protect the recreational use of marijuana.

Loosening Rules for Recreational Use

Employers are still within their rights to fire employees who fail drug tests for marijuana, whether it’s medical or recreational. However, employers are anecdotally loosening their restrictions due to a shrinking applicant pool.

The California Department of Public Health recently reported that 10% of working age adults uses cannabis at least once per month. This makes it more difficult for employers to find clean labor. Though some employers may be taking a more relaxed approach to failed drug tests, this is not a fact they advertise. Legally, employers are still well within their rights to fire employees for using recreational marijuana. The freedom to smoke outside the workplace may exist, but employers can still form their own policies – at least for now.

Employers have the right to drug test as a condition of employment – and terminate based on the results. Even medical marijuana patients can lose their jobs based on a failed drug test, though that policy may change in the near future.