California cannabis law is changing rapidly, and that change includes the laws relating to its application in an employment context. Much of this new law is being created by the courts, not the legislature. Cannabis law is a unique legal minefield, because its medical and recreational use is legal (although restricted) under state law, and yet it remains illegal (although unenforced) for both purposes under federal law.
The Current State of the Law
As it stands now, there is no California or federal law that prevents an employer from firing an employee simply for using cannabis, regardless of whether that use is for recreational or medical purposes. In 2018, a bill was introduced that would require an employer to accommodate medical marijuana use by an employee; however, this bill has stalled and may never pass. Obviously, there is no federal law requiring employers to accommodate cannabis use by an employee for any reason whatsoever.
Pitfalls for the Unwary
As is often the case with legal principles, little is cut and dry. And oversimplifying matters could result in getting tripped up by hidden complexities. For example:
Suppose an employee tells you that he used medical marijuana to treat depression. Although you might be able to fire the employee if he continues using cannabis to treat this condition, as long as he is still your employee, you will be required to accommodate the underlying conditions (depression) even if you don’t tolerate your employee’s preferred treatment (medical marijuana).
California law requires employers with 25 or more employees to accommodate drug and alcohol rehabilitation. This could be interpreted to include “cannabis rehabilitation.”
Suppose you discover that two of your employees are using cannabis and you fire one but not the other. Under certain circumstances (racial diffeence between the fired emplyees, for example), you could perhaps be sued or otherwise sanctioned for discrimination.
In principle, California employers are allowed to test their employees for cannabis along with other drugs that are illegal even in California. Care is advised, however, under certain circumstances, to avoid falling afoul of privacy or discrimination laws. The safest way to test an employee for cannabis use is upon reasonable suspicion. An employer is also permitted to test job applicants for cannabis prior to hiring them.
Random drug tests of current employees are relatively dangerous for employers, although they are not absolutely prohibited under every circumstance. The legality of a drug test is based on a balancing of an employee’s right to privacy versus the employer’s right to maintain a drug-free workplace. As such, an employer can justify random drug tests if the employee works in a “safety-sensitive” position where drug intoxication would pose an imminent health or safety threat with “irremediable consequences.”
Act Promptly and Decisively
If you are an employer or an employee with questions about your rights and liabilities with respect to cannabis use, call CKB Vienna today or contact us online so that we can schedule a meeting to discuss your case and answer your questions. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.