California Laws on Medical Marijuana in Employment

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Is Drug Testing Legal?

California is one of the few states with a right to privacy written in its state Constitution. The right to privacy extends to both government employees and to employees in the private sector. While Californians have a right to privacy, the validity of drug-testing procedures depends on a “balance test.” Under the test, an employer’s reason for drug testing is weighed against the employee’s right to privacy. Whether a drug-testing procedure is lawful depends on whether the drug test was pre-employment testing, random testing, or reasonable suspicion testing.

Generally, employers are allowed to require employees to pass a drug test as a condition of employment so long as the employer tests all applicants for the position and does not single-out a specific applicant based on race or disability. On the other hand, random drug testing in California is generally not legal for employees whose jobs do not impact public safety.

Can Employees Who Use Medical Marijuana in California be Terminated For Using Medical Marijuana?

California is one of twenty-three states which have legalized the use of medical marijuana. In 1996, Proposition 215, known as the Compassionate Use Act, was passed in California. The Compassionate Use Act provides that people who use marijuana under the care of a physician are not subject to criminal prosecution by the State of California.  Under the Act, California citizens are permitted to use medical marijuana for the following illnesses:

 • Cancer
• Glaucoma
• HIV/AIDs
• Arthritis
• Chronic pain

In addition to the above, medical marijuana may be used for any other illness for which marijuana provides relief.

The Americans with Disability Acts (“ADA”) prohibits discrimination against individuals with disabilities for employment. These laws require employers to make “reasonable accommodations” for disabled employees to enable them to perform their job.With many patients using medical marijuana to alleviate symptoms of their disability, some users argue marijuana should be considered a “reasonable accommodation” for them to perform their job. They further contend that termination for medical marijuana use violates employee rights.

California courts disagree. In 2008, the California Supreme Court ruled that employers have a right to drug test and fire patients who test positive for marijuana, regardless of their medical use. The court opined that because California Fair Employment and Housing Act does not require employers to accommodate illegal use, an employer can lawfully terminate an employee who uses medical marijuana. More recently, in 2012, the Ninth Circuit similarly held that the ADA does not offer job protection for medical marijuana users because marijuana is an illegal substance under Federal law.

Currently, there is a movement in California to put legalized marijuana on the ballot in 2016. Legalizing marijuana in California may be the first step in recognizing it as a reasonable accommodation for employees with disabilities under the ADA. Until then, employers can continue to treat medical marijuana as an illegal drug, and they need not permit its use in the workplace.

What Can I Do if I’m Terminated for Medical Marijuana Use?

The law is continuing to evolve as more and more states legalize medical marijuana and marijuana for recreational use. If you have been terminated for medical marijuana use, it is important to speak with a qualified employment lawyer who handles wrongful termination. They can help you assess your situation and will be knowledgeable about any changes to California law regarding medical marijuana use in the workplace.

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Last Modified: 01-06-2016 04:10 PM PST

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