It’s a new year, and there is a lot of publicity about recreational marijuana now being legal in California. However, many people seem to have the mistaken belief that they cannot be fired or refused a job for smoking marijuana (since it’s legal and all). Wrong. It is important for both employers and employees to understand that the new law does not impact employers’ rights to maintain and enforce drug-free workplace policies and drug testing policies that make a positive test for marijuana a terminable offense (or a bar to hiring).
The new law expressly states that that it should not be construed or interpreted to:
- restrict the rights and obligations of public and private employers to maintain a drug and alcohol-free workplace;
- require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace;
- affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees; or
- prevent employers from complying with state or federal law.
Under federal law, marijuana remains a Schedule I drug that is prohibited under the Controlled Substances Act, and the California Supreme Court held in 2008 (Ross v. RagingWire Telecommunications, Inc.) that an employer lawfully may enforce a policy of refusing to hire an applicant who tests positive for marijuana — even if the employee was using the marijuana for medical purposes as has been permitted under California law for several years. The expanded legalization of marijuana for recreational use in California does not change the legal analysis. Because marijuana remains illegal under federal law (and in most states), employers are entitled to continue maintaining policies prohibiting the use of drugs classified as illegal under federal law and to enforce those policies equally as to applicants and employees regardless of whether the applicant/employee is in California.
But what about the fact that California has a law prohibiting employers from taking adverse action against an employee for lawful off-duty conduct (Labor Code section 96, 98.6)? If smoking pot off-duty is legal, doesn’t this law protect an employee from being fired solely because of this legal activity? No. California courts generally have interpreted these laws to apply to lawful off-duty conduct related to political activity and expression. They have not been interpreted to protect marijuana use. Of some note, Colorado, which legalized marijuana a few years ago, has a similar law protecting employees from adverse action based on lawful off-duty conduct. The Colorado Supreme Court considered whether this law prevented an employer from firing an employee who tested positive for marijuana. Answering this question in the negative, the court held that because marijuana is still illegal under federal law, its use is not “lawful off-duty conduct” and, therefore, an employee properly may be fired for a positive drug test. It is likely that a California court would reach the same conclusion under California law, particularly given that California’s recreational marijuana law expressly states that it is not intended to alter employers’ rights to maintain existing drug-free workplace and testing policies.
Employers who wish to maintain such policies should ensure that their policies make clear that prohibited drug use extends to all drugs prohibited by federal law, including marijuana — even in states where medical and/or recreational use has been legalized. For employers who do not wish to make recreational or medical use of marijuana a bar to employment (for fear that they won’t have a workforce), they may wish to revise their policies to have a carve-out for marijuana in states where its recreational use has been legalized. However, even these employers will want to maintain a policy that prohibits being under the influence of marijuana while at work and/or performing duties on behalf of the company.
Employers are also reminded that the passage of this new law does not entitle them to suddenly drug test their current workforce. Employers generally may only drug test applicants for employment (after a conditional offer has been made). Post-employment drug-testing generally is limited to reasonable suspicion testing. Random drug testing of current employees is, for the most part, prohibited. There are exceptions for certain safety-sensitive positions and positions covered by special laws and regulations that require more frequent drug testing and/or drug testing based on certain circumstances (e.g. post-accident testing). Employers should have clear policies that employees acknowledge (in writing) setting forth the circumstances under which the company requires drug testing of applicants/employees and how the company treats the use of marijuana in states where its use is legal for medical and/or recreational purposes.
Multistate employers should also measure their policies against the marijuana-related laws of other specific states (other than California) where they employ workers. At least one state, Connecticut, has held (contrary to California’s highest court) that employers must accommodate medical marijuana use. Because there is an increasing public sense of “unfairness” in the fact that an employee could be fired for doing something that is legal in their non-working time, it is possible (and perhaps likely) that more states will begin enacting laws that protect the employment rights of marijuana users where such use has been legalized. For now, marijuana users in California do not have job protection.
A final note. U.S Attorney General Jeff Sessions has announced he may rescind the “Cole Memorandum” (under the O’Bama Administration) which permitted the State’s the opportunity to legalize marijuana. If this happens the use of marijuana whether for medicinal reasons, or recreational use, will once again be illegal at the State level.