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Can an employer fire an employee for testing positive for marijuana?

As of January 1, 2018, California law expanded individuals' ability to purchase marijuana in the state. Since the passage of Proposition 64 in November 2016, California has allowed the possession of small amounts of marijuana for recreational purposes. California law now permits the sale of small amounts of marijuana, making it easier for individuals across that state to obtain the drug.

With the change in the legal landscape, many employers are curious about how the new law will impact the workplace. The general answer to this question is specifically outlined in the text of the new law. The text of Proposition 64 expressly provides that it does not restrict the rights and obligations of public and private employers to maintain a drug and alcohol free workplace. It also states that the law does not require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace.

Employers may also wonder how Proposition 64 law will impact its pre-employment drug screening policies. The California Supreme Court previously held that employers may require prospective employees to pass a drug test as a condition of employment when the employer’s testing is performed in a uniform and non-discriminatory manner. Loder v. City of Glendale, 14 Cal.4th 846 (1997). Proposition 64 does not change the Loder rule, because it specifically provides that the new law will not affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees.

California employers may also prohibit employees’ marijuana use even when marijuana is prescribed for a medical condition. Although California employers are not permitted to discriminate against employees with medical conditions under the California Fair Employment Housing Act, employers are not required to accommodate an employee’s medicinal marijuana use irrespective of whether the employee has been prescribed marijuana for a medical condition. In 2008, the California Supreme Court held that employers may refuse to hire an applicant who tested positive for marijuana, even if the employee’s marijuana use was lawful under the California medical marijuana laws. Ross v. RagingWire Telecommunications, Inc., 42 Cal.4th 920 (2008).

Proposition 64 further expressly states that it does not prevent employers from complying with state or federal law. It should be noted that Marijuana continues to be a Schedule I controlled substance under federal law. Employers are, therefore, expressly protected when engaging in activities to comply with state or federal law.

Although Proposition 64 will not change California employers’ ability to maintain drug free workplace policies, employers should still continue to ensure that their current policies are in compliance laws related to the permissible scope of workplace drug screenings. Furthermore, employers wishing to limit marijuana use among employees should review their policies to ensure that marijuana is delineated as a prohibited substance under its policy.

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