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.
In November of 2016, California joined a handful of states in legalizing adult recreational use of marijuana with the passage of Proposition 64. While medical marijuana has been legal in California since the Compassionate Use Act was passed in 1996, it is now legal for any adult over the age of 21 to possess and use up to one ounce of marijuana. However, while marijuana use is now legal in California, using the substance may still impact your current or future employment opportunities. The passage of Proposition 64 has not changed the ability of employers to screen applicants or randomly test current employees for marijuana use. In addition, California courts continue to uphold an employer’s right to terminate employees for testing positive for marijuana. Employers can terminate an employee for marijuana use even if it is done with a valid prescription for a medical condition or disability.
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. Medical marijuana advocates argue that marijuana should be considered a “reasonable accommodation” for individuals using marijuana to treat medical conditions. 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.
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 California 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.