Employees may still be terminated for using marijuana on their own time if their employee drug tests.
California recently became the eighth state in the country to full legalize marijuana. In other words, Californians can now use pot for both medicinal and recreational purposes, as long as they follow the law with regards to the amount that they can purchase at a time and not driving while impaired. However, the sale, purchase and use of marijuana is still a crime under federal law. In addition, many employers maintain strict drug and alcohol-free workplace policies. This may raise the question for some Californians hoping to partake in legal marijuana: can I be fired for smoking weed when I am not at work?
According to an experienced California employment law attorney, it depends on the situation. The new California law expressly states that it should not be 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.
In essence, this means that the legalization of marijuana does not allow employees to suddenly start smoking pot at work — just as they are not entitled to get drunk at work.
However, the concern for most employees is not getting high at work, but their off-duty conduct. Because marijuana can stay in your system for an extended period of time (unlike alcohol), many employees may be concerned that smoking pot when not at work can lead to them failing a drug test. All California employees should be aware that they can still be drug tested, and they can still be fired if they fail that drug test — despite the fact that marijuana is now legal in California.
There is an important exception that employees should be aware of — if they are using marijuana for medicinal purposes. In those situations, employers may be bound by the Americans with Disabilities Act. While an employer may refuse to hire an applicant who tests positive for marijuana, even if he or she is using it for medicinal purposes, the same analysis may not apply to an employee who has already been hired.
Because the legalization of marijuana for both recreational and medicinal purposes is relatively new, the law on the firing of employees for marijuana use is still emerging. While employees should be mindful that employees have a right to enforce a drug-free workplace, there are situations where employer conduct may be illegal or discriminatory. That is why it is vital to consult with a seasoned California employment law attorney if you have faced any type of adverse employment action based on your marijuana use.
At PLBH, our attorneys have more than 50 years of combined experience helping employees who have faced discrimination in the workplace. Contact our office today at (800) 435-7542 or info@plblaw.com to schedule a free initial consultation and learn more about how we can help.