What you need to know about weed and the workplace

It’s been legal to buy and sell recreational cannabis since the beginning of the year. However, this doesn’t mean that you can show up to work stoned.  

As the new law took effect, we received a lot of questions from people wondering about marijuana and their jobs.

“Can my job or my employer fire me if I’m drug tested and am found to have THC in my system?”

The simple answer is YES.

Your California employer has the right to fire you for using marijuana on the job or during your off-hours. An employer can also decline to hire someone whose pre-employment drug screening tests positive for cannabis.

Even though marijuana is legal for adult recreational use, it is still up to each individual employer to determine what their drug policy is. Proposition 64 made it legal to use, buy, grow and sell cannabis, but it does not limit “the rights and obligations of public and private employers to maintain a drug and alcohol-free workplace.”  

Michelle Lee Flores, partner with the labor and employment firm Cozen O’Connor, likens it to the use of alcohol. You can’t show up to work drunk. “You know prohibition in the workplace comes from a safety concern for you and your co-workers,” according to Flores. “Under California law, but also under various federal laws, there’s a safety in the workplace mandate on employers. They have to provide a safe working environment for you.”

So when can an employer drug screen an employee?

If a company has a drug free policy, a post-offer, pre-employment screen is pretty standard for any potential employee. But once you have the job, Flores says employers are much more limited on when they can administer a drug test.

Some employers are federally mandated to test for drugs. This includes the Department of Transportation and the Federal Railroad Administration. These are institutions that are federally required to administer random drug tests.

However, if there is no legal mandate, a California employer that wants to randomly drug test must make a strong case that an employee works in a “safety sensitive” position, like driving a vehicle or operating equipment. The company must also prove that an imminent safety or health threat. This is a very high standard for employers to meet.

FOR MOST JOBS: an employer can administer a drug test if there is “reasonable suspicion” that someone is impaired by drugs, based on an employee’s suspicious behavior or physical evidence of illicit substances or following an on the job accident. Drug tests under these conditions must be conducted without delay.  

What should employers do?

Flores recommends that employers should lay out what their policy is regarding marijuana. They should be transparent about whether they test for it, what reasons they use for testing employees and what disciplinary actions can be taken as the result of a failed test.

Can I be fired for having THC in my system if I’m using cannabis for medical reasons?

The simple answer is YES.

The California Supreme Court has held that a company in California can fire an employee for having THC in their system, even if they have a medical marijuana card and are using cannabis to treat a condition.

The employer cannot ask what your condition is, because that would violate the California’s Fair Employment and Housing Act, which is very similar to the American with Disabilities Act. Flores says a company could ask an employee who has tested positive for THC in their system, but is using it for medical reasons, if there is a legal option for treating the condition.

Where science hasn’t caught up with the law.

While alcohol and harder drugs usually filter out of the system in less than a day, a positive hit for cannabis use can turn up in urine, saliva and hair tests months long after the “high” has worn off. That makes it tough to tell whether a worker was impaired on the job or simply used cannabis in their off-work hours days, weeks or even months before.

Since marijuana is stored in fat cells, many factors affect how quickly the body metabolizes the drug, including the person’s tolerance, how they ingested it and the pot’s potency.

To determine if someone is considered legally impaired by alcohol in order to operate a vehicle, you can test to see if a person’s blood alcohol level is .08 or more. However, there is not yet a clear scientific standard to determine when someone is illegally impaired by marijuana. Flores says “there’s needs to be some clarity in California as to what what are we going to determine is inhibiting.” But what matters most is your employer’s drug policy.

What questions do you have about recreational marijuana?

(Photo: Brett Levin)