WORKPLACE LAW – Medical Marijuana In The Workplace

Question: An employee at our company who has a medical marijuana prescription recently tested positive for marijuana. Is my company allowed to discharge the employee for this reason?

Answer: It depends on where your company is located. Although a majority of states have legalized medical and recreational marijuana use, it remains illegal under federal law as a Schedule I drug. With this conflict in mind, it is important for employers to understand how state marijuana legalization impacts their obligation to accommodate disabled employees who use marijuana medicinally, and their right to enforce drug-free workplace policies.

If an employee is having difficulty performing one or more essential functions of the employee’s job due to a disability, both California law and federal law require employers to engage in interactive discussions with the employee to determine if reasonable accommodations can be provided so the employee can perform the essential functions of the job. Although the Americans with Disabilities Act states that a qualified individual with a disability “shall not include any employee or applicant who is currently engaging in the illegal use of drugs,” courts and lawmakers across the country are now being asked to decide whether medical marijuana use should be accommodated under state law.

Some states have enacted laws that prohibit discrimination against off-duty cannabis use or require employers to accommodate its use for medical reasons. Just last year, there was a bill introduced in California to provide such protections for employees, but the bill did not pass. Some state courts have also ruled that employers must reasonably accommodate medical marijuana use in the same manner that employers are required to accommodate the use of other prescription drugs. Other states, including California, have ruled that employers may lawfully enforce policies that refuse to employ applicants or employees who test positive for marijuana—even if the employee was using the marijuana for medical purposes.

In California, employers should be mindful of the apparent growing support for medical marijuana protections in the workplace. Employers that maintain drug-free workplace policies must also ensure that they comply with state law regarding drug testing of prospective and current employees. Generally, the right to drug test under the California Constitution is evaluated by balancing the employee’s reasonable expectation of privacy against the employer’s legitimate interests in imposing the test. In California, employers may conduct drug testing only in limited circumstances:


• Pre-Employment Testing: allowed as a condition of employment after a job offer is tendered but before the employee begins working;
• Reasonable Suspicion Testing: permitted when there is a reasonable belief, based on specific objective facts and rational inferences drawn from those facts, indicating that an employee is impaired by drug or alcohol use;
• Post-Accident Testing: allowed only if an employer has an objectively reasonable basis to believe that employee drug use is likely to have contributed to the accident and the drug test can accurately identify impairment caused by drug use;
• Routine or Random Drug Testing: allowed only for certain job classifications; and
• Restrictions Imposed by Local Drug Testing Ordinances: some cities like San Francisco have enacted local ordinances relating to employee drug testing.

Employers whose policies prohibit marijuana use should review their existing drug testing and drug-free workplace policies to ensure compliance with emerging state law. Because the legal landscape in this area changes frequently, it is important to make sure these policies are updated on a regular basis.