Since voters approved Proposition 64 in November last year, recreational marijuana is legal in California. Medical cannabis has been legal since 1996 already, but with the passage of Proposition 64, there is more confusion than ever before among employers about whether they need to accommodate stoned employees at work. They have no obligation to, just as they do not have to tolerate drinking on the job.
If employees test positive for cannabis, employers have the right to terminate their employment. Since weed has been legal for medical purposes for over a decade, what happens if workers can provide doctor’s notes for it? Does it mean that employees can now vape, smoke, or nibble marijuana edibles at work? What happens if accidents occur and responsible workers test positive for weed?
As John Travolta explains in the movie “Pulp Fiction,” it is legal, but it is not a hundred percent legal. Employers have the right to create their own company environments and are under no obligation to accommodate marijuana use among their employees if they do not want to, which puts both recreational users and medical marijuana patients at risk of losing their jobs.
Right to Fire Marijuana Patients in California
Now that weed is legal, there is some misunderstanding among employers that they cannot fire employees using it. However, the law gives employers the right to fire anyone breaking their work policies. There is nothing in the law that forces employers to accommodate weed use and they are free to enforce their company rules accordingly.
Although issues have arisen in courts over the firing of employees for marijuana use, the law protects employers’ rights to do so. Proposition 64 does not change this. In fact, it specifically includes language written into the legislation that protects their right to test for drugs and fire employees that test positive. Back in 2008, Proposition 19 failed specifically because it did not contain that clause.
Employees Testing Positive for Marijuana in California
In the highly publicized Ross vs. RagingWire Telecommunication’s case, the California Supreme Court ruled in favor of RagingWire Telecommunications. Employee Ross filed a lawsuit against RagingWire for firing him for testing positive in a pre-employment drug test. In this verdict, the court ruled that the law did not give patients a general right to use it, only protection from criminal sanctions.
Employers may require pre-employment drug tests from potential hires, and they may consider illegal drug use in their employment decisions. In this case, the law immunized workers from criminality but did not change the rights of employers to draft their own drug policies. Marijuana is becoming more acceptable every day, however, and the law will likely soften its stance for medical patients in future.
The Right to Ban Marijuana in the Workplace
The California Worker’s Compensation Institute reiterates that employers are free to prohibit the use or possession of weed in their workplaces. Additionally, federal law offers no protection to employees, including the Family Medical Leave Act and the Americans with Disabilities Act. Without an established marijuana policy, though, employers can expose themselves to accusations of discrimination.
Employers should modify their policies to make it very clear whether they allow the use of medical marijuana among their employees. Workers should have clear expectations from the outset. If employers want to implement drug testing, employees must know of their intentions. Furthermore, employers have an obligation to educate their workers about it, including its lengthy stay in the body.
Marijuana in California, marijuana in Santa Monica and other counties stays in the bloodstream much longer than other drugs do, including alcohol. However, proof positive remains elusive. There is no scientifically proven method of testing marijuana impairment as yet, making it difficult to distinguish if accidents are the result of cannabis use or poor performance. The employer has the burden of proving intoxication, creating an insurmountable hurdle for him or her.
Protecting Your Job as a Medical Marijuana Patient
If your employer screens for drugs and has a no tolerance policy toward marijuana, it may be wiser to avoid consuming it for now. The law is not currently on the side of patients, even if you never consume weed at work and only take it after hours. Most employers are fair, however. Unless your job involves public safety, such as driving, building, or supervising children, your employer may allow home use.
For severely ill patients that require frequent dosages of marijuana, it may be in your best interests to avoid strains that have high levels of THC. THC-free products are available in concentrated form, and these include CBD oils and infusions. THC is the psychoactive compound in cannabis, and because cannabinoids do not make you stoned, it is best to consider strains high in CBDs and low in THC.
Although employers can treat cannabis as an illegal drug that they do not need to tolerate in the workplace, it is crucial to follow developing case law. As public policy shifts in favor of marijuana in general, court opinions are likely to evolve. Medical patients in California have a right to use cannabis in the state, but there is no job protection for them currently.
Tension is mounting between employers and workers who are engaging in legal practices and still losing their jobs. More and more people are feeling the injustice of it and groups are lobbying on their behalf. As the issue gets more publicity, case law will hopefully evolve and develop accordingly. The only way medical marijuana employers will get protection is if state law forces employers to accommodate it.