New Year—new, easier access to cannabis in California. As of Jan. 1, Californians have been able to purchase recreational marijuana legally under state law. They’re free to use it in their home and other private spaces.
But the vibe isn’t as easygoing in the Golden State’s workplaces. It’s still within an employer’s legal rights to fire an employee for using marijuana, on or off the job, and to decline to hire someone whose pre-employment drug screening produces positive tests for cannabis.
“The California Supreme Court held that an employer could terminate an employee who was using medical marijuana,” said Kathryn T. McGuigan, of counsel at Morgan, Lewis & Bockius’ Los Angeles office. “Here we are in 2018. We do have this new law that has legalized recreational marijuana [but] that doesn’t really change the scope for employers in California.”
McGuigan was referring to a 2008 case that’s led the conversation around weed in the workplace for nearly 10 years—Ross v. RagingWire Telecommunications In the California Supreme Court case, plaintiff Gary Ross alleged RagingWire Telecommunications Inc. discriminated against him for having a disability by firing him after a drug test revealed his use of medical marijuana for back injuries.
California’s highest court ruled that employers are not required to accommodate an employee’s medicinal marijuana use and that it is legal for employers to fire or not hire someone because of cannabis usage.
And that seems unlikely to change at the moment, as marijuana remains an illegal substance under federal law.
“Even though for the state it’s now legal, it’s not [legal] federally,” said employment lawyer Traci Hinden of the Law Offices of Traci M. Hinden in San Francisco. “Now with the repeal of the Obama rule [the Cole memo], I see this as a huge problem. It was a problem for people with serious medical issues before. I hear there are lines around the corner for [recreational] cannabis, and now this case is going to be broadly applied.”
The Cole memo, guidance issued by the Obama administration in 2013, de-prioritized cannabis prohibition, meaning states could legalize marijuana without much interference on the federal level. Its repeal means federal prosecutors may go after recreational marijuana users and producers, even in states where weed is legal.
But how current cannabis laws play out in the workplace can vary. Generally, California attorneys explained, employees can’t be handing out pot brownies at work or smoking weed in the middle of an office, and employers can drug test before hiring, after an accident or if there’s reasonable suspicion of drug use. Those working with heavy machinery and vehicles may face stricter testing or rules about usage on the job.
The attorneys said that employers can implement zero tolerance policies for marijuana usage or leave it up to employees’ discretion.
The first option, while possibly less popular with workers, provides a clearer path for employers if an employee seemingly shows up high to work. Employers can legally request reasonable suspicion testing, the attorneys said, and if the test comes back positive, a no-tolerance employer with a clear policy could fire or reprimand the employee accordingly.
An employer with a don’t ask, don’t tell approach to usage can also fire an employee with a positive test, according to the California lawyers. But because drug tests can’t show precisely when cannabis was used, they noted, it’s impossible to prove that the test’s positive results mean an employee was under the influence at work.
This means that firing is possible, but could be more contested.
“In those circumstances employers would have a much harder time relying on that [drug] test, or shouldn’t rely on that test for the sole basis [of a firing],” said Gina Roccanova, principal at Meyers Nave Riback Silver & Wilson and chair of the labor and employment practice group. “You could say the test results, plus the fact that you seemed glass-eyed and I smelled marijuana on you, then there’s reasonable case to be made that they violated policy.”
Employers who feel strongly about workers steering clear of cannabis at all times may want to clarify their stance post-legalization, with a clear company policy in place to outline expectations and the repercussions of a positive test, according to McGuigan.
Those taking a less-strict approach, Roccanova said, may want to send an email to remind workers that even if it’s legal to recreationally smoke weed on their own time, being high at work is still a no-go.
“Same way you can’t be drunk at work, you can’t be stoned at work,” Roccanova said.