Can A California Employee Be Fired For Using Marijuana?

In 2016, California passed Proposition 64, or the Control, Regulate and Tax Adult Use of Marijuana Act. Since then, adults have been able to legally use recreational marijuana. Before that, in 1996, California had legalized the use of medical marijuana. Now that any adult can obtain and use marijuana legally, it often comes up whether someone can be fired for using marijuana.

Recreational Marijuana Use

When it comes to the recreational use of marijuana, employers can fire an employee who tests positive. When California legalized marijuana, it did not force employers to accept marijuana use. On the contrary, the bill specifically notes that it is not intended to interfere with an employer’s goal of keeping a drug-free workplace. Thus, if your employer discovers that you are using recreational marijuana on or off the job, they can fire you.

However, there is a caveat to this general rule. California law restricts an employer’s ability to drug test employees. Thus, if an employer illegally administers a drug test to an employee, who tests positive, they may have violated state labor laws. Generally, employers must balance the need to conduct a drug test with the employee’s right to privacy.

Regarding job applicants, employers can use “suspicionless” drug testing when deciding whether to hire an employee. However, an employer must test all applicants, and cannot single out a group of applicants based on specific characteristics. For example, an employer could not only require men to take a drug test, exempting women applicants from the requirement.

Once an employee is hired, it is harder for an employer to require they take a drug test. This is because employees already been hired, have a performance history, and have more at stake. That being the case, employers must have a reasonable suspicion that an employee is using drugs before requiring the employee to take a drug test. Along those lines, randomized drug testing is generally disfavored, except in certain positions where safety is a key issue.

Medicinal Marijuana Use

While medical marijuana is legal in California, the drug is still illegal under federal law. Thus, at least one California court has held that an employer does not need to hire an applicant who uses medical marijuana. However, this question gets murkier when it comes to those who are already employed. Generally, courts do not require an employer to accommodate an employee’s use of medical marijuana. However, the medical use of marijuana is becoming more and more accepted.

The bottom line is that, under current California employment law, medical and recreational use of marijuana can be used as a basis for terminating someone’s employment. Additionally, unlike alcohol, marijuana remains in the body for days or weeks after it is consumed, meaning an employee’s use of marijuana may have no bearing on their ability to safely perform their job. In light of these facts, courts may revisit their previous decisions. Of course, an employee’s case would be much stronger if they were only using marijuana on their personal time.

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