Marijuana in the workplace in California

The federal Controlled Substances Act still classifies marijuana as an illegal Schedule I drug, a designation for drugs with no medicinal use and with a high potential for abuse.[1]  But marijuana has been legalized under California law.  California first legalized medicinal marijuana in 1996 through the Compassionate Use Act, which added Section 11362.5 to the Cal. Health and Safety Code.[2]  In November 2016, California Proposition 64[3] was passed, decriminalizing recreational use of marijuana.  But neither of these provisions change an employer’s workplace drug policies.

Even though marijuana is now a prescription drug, a 2008 California Supreme Court decision found that it does not hold the same status of other legalized prescription drugs.[4]  Not only does the Compassionate Use act not speak to employment law, but the Court noted that “[n]o state law could completely legalize marijuana for medicinal purposes because the drug remains illegal under federal law.”[5]  Rather, the law only speaks to the possession and cultivation of marijuana as to a patient or primary caregiver upon the approval of a physician.[6]  Therefore, the act does not shield employees from termination, and it does not require employers to accommodate the use of the drug under FEHA.[7]  An employer can also continue to require prospective employees to undergo testing for illegal drugs and alcohol, and to condition an offer of employment on the results of a medical examination.[8]

As for statewide legalization of the drug, Proposition 64 states that it does not amend or restrict “the rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace, or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.” Therefore, it provides employees no additional protections for the use of marijuana.

[1] 21 U.S.C. §§ 812, 844(a).

[2] The Compassionate Use Act of 1996 was added through California Proposition 215.

[3] Proposition 64 is also known as the Control, Regulate and Tax Adult Use of Marijuana Act.  It amends/adds Cal. Health and Safety Code §§ 11018.1, 11018.2, 11357, 11358, 11359, 11360 and 11361.5, 11361.1, 11361.8, 11362.1-11362.45, 11362.712, 11362.713, 11362.84, 11362.85, 11362.755, Business and Professions Code Division 10, Labor Code § 147.6, Water Code § 13276, Revenue and Taxation Code Part 14.5, and Food and Agricultural Code §§ 81000, 81006, 81008, and 81010.

[4] Ross v. Ragingwire Telecommunications, Inc., 70 Cal.Rptr.3d 382 (2008).

[5] Ross v. Ragingwire Telecommunications, Inc., 70 Cal.Rptr.3d 382, 387 (2008).

[6] Cal. Heath and Safety Code § 11362.5.

[7] Ross v. Ragingwire Telecommunications, Inc., 70 Cal.Rptr.3d 382, 387 (2008).

[8] Ross v. Ragingwire Telecommunications, Inc., 70 Cal.Rptr.3d 382, 387 (2008); citing Cal. Code Regs., tit. 2 § 7294.0(d); Cal. Gov. Code § 12935(a); Loder v. City of Glendale, 14 Cal. 4th 846, 59 (1997).

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