Authored by Steve Holden. Published in the Sacramento Business Journal September 2011
Ever since the Compassionate Use Act of 1996 (Prop 215) became law, employers have been asking what they can and cannot do about employees who use marijuana. Many employers believe they can do nothing because medical use of marijuana is permissible in California with a doctor’s recommendation. Compounding the problem, many employees misunderstand the relationship between medical marijuana and the workplace, and believe they have legal rights that do not exist. You should know the truth about some of the common myths.
Myth: I cannot ask a prospective employee if she uses medical marijuana.
Truth: You may not inquire about a job applicant’s disability and are therefore prohibited from asking “have you ever been addicted to drugs?” Similar questions about prior drug use may also be inappropriate because the questions may elicit a response about a drug addiction. You may, however, ask about current illegal drug use, including the use of marijuana. Even “medical marijuana” is an illegal drug under federal law.
Myth: I cannot ask prospective employees about arrest records, but can ask about criminal convictions.
Truth: While it is true that you may not ask about arrest records, it is not true that you may ask about all criminal convictions. You may not ask applicants about convictions of certain marijuana related offenses more than two years old. If your application form requests information about convictions, it must also include a disclaimer about the marijuana offenses that need not be disclosed by applicants.
Myth: I cannot require applicants or employees to take a drug test that might reveal the presence of medical marijuana.
Truth: You can require applicants and employees to take and pass drug tests, including tests which detect marijuana. You may screen all applicants or all applicants within a specific job category prior to starting work, as long as you have offered the job first, contingent upon the applicant passing a drug test (conditional offer of employment). In addition, if there is “reasonable suspicion” that an employee is under the influence or otherwise in violation of your drug control policies, you may require the employee to take a drug test. The use of random testing or automatic post-accident testing, however, would likely result in an unlawful invasion of the employee’s privacy rights. Employers in a very limited number of particular industries such as transportation and law enforcement may be required by law to conduct random and post-accident testing. If you are not subject to those specific regulations, however, you may not rely on the regulations to test your employees.
Myth: I have a duty to accommodate an employee’s use of marijuana if it has been prescribed by a physician. For example, an employee with chronic back pain provides me with a note from his doctor indicating that he has a “disability” and has been prescribed marijuana for the condition.
Truth: The law does not require you to accommodate the use of marijuana. First, doctors cannot “prescribe” marijuana because it is not an FDA approved substance. Doctors can only recommend it. Second, the California Supreme Court ruled that you have no duty to accommodate medical marijuana use. While marijuana use for medical purposes is exempt from certain criminal statutes inCalifornia, it remains a crime under federal law. Therefore, you are not required to accommodate the use of it and may fire or refuse to hire persons who use marijuana, even with a medical recommendation. While employees who are addicted to illegal drugs may be deemed “disabled” under the Americans with Disabilities Act (ADA), theADAdoes not affect your right to prohibit the use of or being under the influence of marijuana while at work.
Myth: My property rights can be limited because of an employee’s right to use medical marijuana. For example, an employee’s job duties require her to live on company property. Her doctor recommended medical marijuana because she suffers from chronic migraines. The doctor tells the employee that she is permitted to grow her own supply underCalifornialaw. She wants to grow medical marijuana on the company property.
Truth: While medical marijuana users may be permitted to grow marijuana under certain conditions, no law requires you to accommodate the cultivation of illegal drugs on your property. Remember, marijuana is still an illegal drug under federal law.
Myth: I am not responsible for the actions of an employee that relate to medical marijuana if the marijuana has been legally recommended by a physician.
Truth: Generally, an employer is not responsible for an employee’s conduct outside the workplace when the employee is off-duty. However, you are liable for the employee’s conduct at work and in situations that can be tied to work. Moreover, if you know or should have known that an employee is working under the influence of marijuana, even though medically authorized, you are open to even greater liability.
Myth: I may not fire an employee who tests positive for marijuana following a workplace accident if the employee can prove that he has a valid “script” for the marijuana from his physician.
Truth: You may terminate an employee who tests positive for marijuana, regardless of the employee’s explanation for the marijuana and regardless of a valid “script” for the drug. While you should have proper employment policies in place prior to an accident and should carefully consider the other related legal issues to reduce the possibility of liability for wrongful termination or other claims, California law does not provide employees with job protection related to the legal use of medical marijuana.