Even with legalization, employees could lose jobs for pot use

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Posted by Legal Team On August 15, 2022

Despite recreational marijuana now legal in California, employers can still deny jobs to marijuana users.

At the beginning of 2018, California became the latest state to legalize recreational marijuana use. That fact has led many people to assume that they no longer face serious consequences if they consume marijuana privately in their own homes. Unfortunately, that assumption is not quite correct. As the Society for Human Resource Management points out, employers can still test prospective employees for marijuana and terminate their offers of employment if they test positive for marijuana use – even if the prospective employee has a medical marijuana card. Below is a look at how such a situation is possible and what some lawmakers are doing to hopefully change it.

Fired for marijuana use?

It is natural to assume that since California has legalized recreational marijuana use that employers have no right to take into consideration what a prospective or current employee does in their own free time with the drug. After all, while an employer can certainly ban employees from drinking on the job, they cannot prevent employees from going to a bar on their day off.

Unfortunately, that same protection doesn’t extend to marijuana use, largely because marijuana remains prohibited under federal law. In 2008, the California Supreme Court ruled that employers are under no obligation to accommodate an employee’s medical marijuana needs since marijuana remains federally prohibited. As a result, employers can test prospective employees for drugs and deny them employment if they test positive for marijuana. Because traces of marijuana can stay in the body long after the impairing effects have worn off, a job candidate could still fail a drug test even if they are in no way impaired by pot.

Protecting medical marijuana patients

One bill is currently before state lawmakers that would go part of the way towards addressing this problem. As SF Weekly reports, Assembly Bill 2069 would prohibit discrimination against employees who test positive for cannabis so long as they have a medical marijuana identification card. The law would still prohibit employees from showing up for work while impaired by marijuana.

While the bill, if passed in its current form, would not grant the same protections to non-medicinal marijuana users, analysts say it could be a first step towards that goal. The bill could also provide some protection to employers who are currently concerned about hiring employees who fail marijuana tests due to the drug’s continued status as a federally prohibited substance.

Employment law help

For those who believe they may have been victims of unfair employment practices, it is important to talk to an attorney as soon as possible. While California does have relatively robust protections for workers, the only way to enforce those protections is by having an experienced attorney advocating for one’s rights.