Last fall, California voters enacted the Adult Use of Marijuana Act. Effective January 1, 2018, adults over the age of 21 can smoke marijuana recreationally. Marijuana remains legal for medical use by patients who have a prescription under California’s Compassionate Use Act of 1996. (Health & Safety Code § 11362.5). Are workplace anti-drug policies that ban the use of marijuana still valid?
California employers need not worry (at least for now) about the increasingly widespread use and legalization of cannabis. The new law leaves untouched an employer’s right to maintain a drug-free workplace. The Adult Use of Marijuana Act, Health & Safety Code § 11362.45(f), explicitly allows “public and private employers to maintain a drug and alcohol free workplace.” Thus, employers can still drug-test employees for marijuana under certain circumstances and discharge them for testing positive, even though marijuana is now legal for recreational use in California.
And employers likewise can still deny employment to job applicants who test positive for pot. Section 11362.45(f) provides that an employer need not “permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of cannabis in the workplace.” The new statute does not disturb the California Supreme Court’s 2008 ruling that validated an employer’s right to reject job applicants who test positive for marijuana – even if the applicant was using the marijuana for medical purposes under the protection of the Compassionate Use Act.
In Ross v. Raging Wire Telecommunications Inc., the plaintiff tested positive for marijuana that he was using on his doctor’s recommendation for pain relief purposes. When his employer fired him, he sued for disability discrimination under California’s Fair Employment and Housing Act (FEHA). The Supreme Court held in a 5-2 decision that employers can refuse to hire applicants and may terminate employees who use marijuana for medical purposes. In so holding, the Court concluded that (1) FEHA does not require employers to accommodate the use of drugs that are illegal under federal law, and (2) discharging an employee for consuming marijuana did not violate a fundamental state public policy.
Employers should review their handbooks and written policies to ensure that their anti-drug policies are clear and explain that the use, possession and being under the influence of recreational marijuana is prohibited in the workplace.