Since the passage of Proposition 64 making recreational cannabis legal in California, there has been some confusion among employers as to whether they are required to accommodate an employee’s use or possession of the drug.
What should an employer do, for instance, if a new employee tests positive for cannabis? Since use of cannabis for medicinal purposes has been legal since 1996, what if a worker presents a doctor’s note for it? Are employees now allowed to smoke, vape or nibble cannabis edibles while at work? What if an accident occurs and an employee subsequently tests positive for cannabis?
The short answer is that employers do not have any obligation to accommodate cannabis use.
Like John Travolta explained in the film “Pulp Fiction,” “It’s legal, but it ain’t a hundred percent legal.”
RIGHT TO FIRE
“There is some misinterpretation that employers can’t fire employees now that [cannabis is] legal, but employers can still enforce their policies as there is nothing in the law that says they have to accommodate that,” said Robin Largent, partner at Carothers Disante & Freudenberger LLP in Sacramento.
Although legal issues have arisen over the termination of workers for cannabis use, employers are protected by language in the law.
“Prop. 64 does nothing to change an employer’s right to drug testing or termination. There is a clause specifically written into the legislation that expressly protects an employer’s right to do so. In 2008, Prop. 19 failed because it did not have that clause,” said Susan T. Daniel, founder and principal of Employee Relations Consultants, a human resource consulting firm in Santa Rosa, and also instructor of employment law at Empire Law School.
WHEN HIRES TEST POSITIVE
Largent cited a seminal 2008 decision — Ross vs. RagingWire Telecommunications — in which the California Supreme Court dismissed a lawsuit by an employee who had tested positive for marijuana in a pre-employment drug screen. The court ruled that legalized medical marijuana did not create a general right to use it, but the allowance only protected patients from criminal sanctions.
“Under California law, an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions,” the ruling said.
“The law in this case immunizes employees from criminal law but doesn’t change an employer’s drug policy,” Largent said.
In 2016, a federal district court in California reaffirmed that an employer, in this case Kohl’s department store, maintains the right to discipline employees even where the marijuana use is recommended by a physician: “It does not violate [California’s laws against workplace discrimination] to terminate an employee based on their use of marijuana, regardless of why they use it,” the ruling said.
FREE TO BAN — WITH CAUTION
A November report from the California Worker’s Compensation Institute, a private nonprofit organization of insurers and self-insured employers, also states employers are free to ban the use or possession of marijuana on the job.
Furthermore, federal laws, including the Americans with Disabilities Act and the Family Medical Leave Act also do not protect marijuana use in the workplace.
However, employers who do not have a well-documented cannabis policy could expose themselves to allegations of discrimination.
“I advise clients to modify their policy if necessary to make clear it’s illegal, giving employees clear expectations,” Daniel said.
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