Is recreational use of marijuana now legal in California? Well, yes and no. Yes, because it is now legal under state law (subject to certain restrictions, of course). No, because federal law still prohibits the use of marijuana, even for medical purposes. Since federal law trumps state law (no pun intended), the answer seems clear: marijuana use is still illegal in California – sort of.
The catch is that, for now, the federal government is refraining from enforcing its anti-marijuana laws in states that have legalized its use. So how does the federal government’s voluntary forbearance affect the relationship between employers and employees who indulge in this practice?
Not Much Has Changed – for Now
Although the law is changing rapidly in this area, at present, the following state of affairs prevails:
Both public and private employers have the right to insist upon a drug-free workplace. Marijuana is still classified as a “drug”, even though California has legalized it. Some employers (employers of delivery drivers, for example) are required to insist that their employees remain drug-free on the job, for obvious reasons.
An employer may forbid the use, consumption, possession, or display of marijuana in the workplace, even if such prohibition has no direct bearing on the mission and function of the organization. A stockbroker can still be fired for bringing a bag of marijuana to work, for example.
An employer can terminate an employee for off-duty use of marijuana. Since it remains illegal under federal law, an employer is not forbidding an employee from engaging in a “lawful off-duty activity,” which could, in certain circumstances, raise serious legal questions.
An employer may administer drug tests to prospective employees and refuse to hire those who test positive for marijuana use.
Employers may carve out exceptions to normal marijuana prohibitions for the benefit of employees who use marijuana for medical reasons (someone suffering from glaucoma, for example, might be hired even after a positive marijuana test), but they are not required to do so since even medical marijuana use is barred under federal law.
In most cases, an employer can ignore a positive marijuana test and go ahead and hire a prospective employee anyway unless there is a law expressly prohibiting it (for certain federal jobs requiring high-level security clearance, for example).
Marijuana law, as it relates to employee rights, is in a state of flux right now, and some legal scholars anticipate rapid changes in the future. Employers would do well to keep abreast of these changes, especially if (i) the federal prohibition against marijuana use is lifted, or (ii) the U.S. Attorney General begins strictly enforcing federal marijuana law even in states that permits its medical and recreational use. Either way, however, many employer rights and obligations will not change.
At CKB Vienna LLP, we can help you navigate the legal minefield that the semi-legalization of marijuana has created for employers and we can aggressively represent you if a dispute should arise over your treatment of your employees. Call us at 909-980-1040 orfill out our online contact form to learn how we can help you protect your interests. We serve clients from all over Rancho Cucamonga, including Alta Loma, Upland, Fontana, Chino Hills, and Claremont.