September 23, 2019

Marijuana is becoming increasingly common in our society and in our workplace. Though medical marijuana has been legal since the Compassionate Use Act of 1996, the legalization of recreational marijuana has increased the number of times employers encounter situations with employees who are using or have used marijuana.

Can an Employer Terminate or Refuse to Hire an Individual Based on Marijuana Use?

The short answer is yes—for now. Despite California’s legalization of both medical and recreational marijuana, California law does not protect marijuana users from employment-based decisions.

In 2008, the California Supreme Court decided that, though medical marijuana had been decriminalized under state law, the Compassionate Use Act did not give marijuana the same status as prescribed pharmaceutical drugs nor provide for employment protections for medical marijuana users. Though the Act exempted medical marijuana users from criminal prosecution in California, marijuana remained a Schedule 1 drug under federal law, meaning that employers were not required to grant exceptions to its zero-tolerance drug policies to accommodate medical use.

That ruling still stands in California today. However, recent efforts have been made to provide employment protections for individuals using marijuana medicinally. In 2018, the California Assembly shelved a bill that would have obligated employers to “reasonably accommodate” the use of marijuana for treatment of a known physical or mental disability or medical condition. If passed, the bill would have made the use of medical marijuana subject to the same interactive process as any other treatment or accommodation for a disability.

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