Medical Marijuana and the Workplace. . . [Cue Pot Pun]

Yesterday, the New Mexico Court of Appeals ruled that a patient in the state’s medical marijuana program who was injured on the job must be reimbursed by his employer for the expense of marijuana used for treatment.

That’s a pretty narrow ruling (involving a state program and workers compensation for on the job injury), but it sparked discussion on the interweb about medical marijuana in the workplace.

Can a company fire an employee for marijuana use? Should employers fire anyone who fails a drug test that shows marijuana use? As usual with California employment law – the answers are . . . “it depends”!

In California, individuals have a legal right to use medical marijuana and employers have a legal right to prohibit or restrict the use of alcohol and drugs at the workplace.

Use of medical marijuana is generally exempt from certain California criminal laws, but it remains a crime under federal law. This means that a worker’s legal right to use medical marijuana is protected from criminal prosecution, but not from an employer’s policies about the use of alcohol and drugs.

California employers can prohibit workers from possessing, using or being under the influence of marijuana at work, just as they can forbid them from being drunk on the job. But they cannot fire or refuse to hire workers because they have a medical condition they are using marijuana to treat.

An employer does not need to accommodate medical marijuana use. Employers are protected in firing or refusing to hire persons who use marijuana or test positive for marijuana use, even when the use was prescribed by a physician to alleviate a disability. An employer may require pre-employment drug tests and take drug use into consideration in making employment decisions.

As a general rule, employers must accommodate employees with medical conditions or disabilities, but they do not have to let them use marijuana in the workplace, even if medically prescribed. Disability discrimination laws prohibit employers from discriminating against workers or applicants because of a mental or physical 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. What qualifies as an undue hardship depends on the size of the employer, the cost of the accommodation and other individual factors.

A California employer can elect not to hire someone who reveals their use of medical marijuana, or fails a pre-employment drug test. But this should not be your automatic, no-analysis-performed policy. Before using any pre-employment drug test program, an employer must analyze if the position is such that a drug test is appropriate. Is this a job for which drug testing is necessary and/or reasonable? For example, for some jobs it is critical to know if the applicant is using drugs or alcohol: a butcher where knives are used, an industrial bakery with a huge mixing apparatus, a transportation company. For these workplaces, everyone’s safety may be compromised by an employee impaired by drugs or alcohol. Other jobs, such as those in an office setting, a pre-employment drug test may not be necessary.

In California, employers can require job applicants to pass a drug test as a condition of employment. But they generally cannot test a current employee unless they have a reasonable suspicion the worker is under the influence.
Random testing of unsuspicious employees is allowed in only a few cases. Federal law requires random testing of certain transportation industry employees. California law allows it for certain safety-sensitive jobs, but there are many rules and safeguards. San Francisco bans random testing in employment, except when required by federal law.

In the end, I usually suggest the following: Make it explicitly against company policy to be under the influence of drugs and/or alcohol at work, no matter when the product was ingested. Then, look at specific jobs to determine if testing is appropriate (and legal). Simple!

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