Marijuana and the California Workplace

Can employees in California smoke marijuana at their place of work? Or test positive for drug tests? While at least some states (including California) are allowing the use of medicinal marijuana and two more (Colorado and Washington) are allowing recreational marijuana use, federal law does not necessarily agree with its legality. In fact, courts consistently find that employers may terminate employees who test positive for marijuana, regardless of whether such employees are using marijuana to treat a disability; whether they were not under the influence on company time; or whether they used or possessed marijuana on company premises.

Recently, a California court confirmed that employers have the option of continuing zero-tolerance approaches to drugs, marijuana included. Specifically, employees may be disciplined or terminated for marijuana use (despite state statutes prohibiting discipline for engaging in lawful activity outside of work) and employers need not accommodate medical marijuana use as a disability-related condition.

Cases around the country show that this holds true even if the employee is:

• A paraplegic trying to alleviate pain (Curry v. MillerCoors, Inc.);
• Subject to pain from injuries sustained in the armed forces for which marijuana is the only effective resort (Ross v. Raging Wire Telecommunications, Inc.);
• Unable to eat due to anxiety, nausea, and other symptoms without marijuana (Emerald Steel Fabricators v. Bureau of Labor and Industries);
• Treating an inoperable brain tumor with marijuana (Casias v. Wal-Mart Stores, Inc.).

So what is a California employee to do? Because marijuana remains illegal under federal law, it does not have the same status as other prescription drugs (e.g., Valium, Xanax, etc.). Technically, an employer has no duty to accommodate illegal drugs under the ADA (including the medical use of marijuana).

The takeaway? Until marijuana becomes legal under federal law or until California statutes explicitly address medical marijuana in the workplace, employers have the option to continue to ban users of that drug. For assistance in analyzing the legality of medical marijuana in California workplaces, contact the experienced Orange County employment attorneys at Hardin & Associates today.