While California law allows individuals to possess and use medical marijuana as prescribed by their physicians, its use and possession is still illegal under federal law and under California law without a valid prescription.  For California medical marijuana users and their employers, this legal framework complicates questions concerning employees’ rights to use prescribed medical marijuana and employers’ rights to discipline employees for marijuana use.

In 2008, the California Supreme Court ruled that employers can terminate employees for using medical marijuana.  (Ross v. Ragingwire Telecommunications, Inc. (2008) 42 Cal.4th 920.)  The Court narrowly interpreted the Compassionate Use Act, finding that it does not create a general right to use medical marijuana, but only protects patients from criminal sanction for the possession or cultivation of marijuana.  The Court’s decision gives wide discretion to employers regarding their policies and tolerance of marijuana use by employees.

Federal and California law, however, prohibit almost all employers from discriminating against employees or job applicants because of a physical or mental disability.  Employers must make reasonable accommodations for the disability, unless it would pose an undue hardship or unless the disability poses a health or safety threat.  Under the California Fair Employment and Housing Act (FEHA), disability is defined broadly as an impairment that makes performance of a major life activity “difficult.”  What then is an employer to do when confronted with an employee who uses medical marijuana as prescribed by their physician for something like anxiety or cancer?  In large part, that depends on the employer’s policies on drug use.  Under the federal Americans with Disabilities Act and California’s FEHA, the employer has an obligation to talk to the employee to see if reasonable accommodations can be made to allow the employee to perform their work in light of any disability.

In general, under California law, employer drug testing is permissible in the following narrow circumstances:  (a) prior to employment as part of the screening process, (b) as part of a random drug testing program, permissible only in limited circumstances, (c) following an accident, (d) as part of a physical exam, and (e) under suspicion of illegal drug use.  In general, employers do not have the ability to selectively drug test a particular employee at whim.

If you are an employee or an employer with questions about medical marijuana use and the workplace, give us a call at Janssen Malloy LLP.