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Can employees still be fired for smoking pot?

The legalization of recreational marijuana has left many employers in California wondering how it will impact their workplace. Can employers deny employment or discipline workers for testing positive when using pot outside the workplace is legal?

Many employers wonder whether they need to modify their policies to address marijuana use, and beyond that, some can struggle over whether to accommodate the use of medical marijuana, both at home and in the workplace.

Drug-free workplace rules still apply

Despite the legalization of cannabis use, California employers may still enforce drug-free workplace rules, and they can test workers and fire them if they test positive or refuse to take a test. However, some state courts have ruled that employers must accommodate the use of medical marijuana as they would other prescription drugs.

Drug testing is allowed on a limited basis in California

The state’s constitution says drug testing is evaluated based on the employee’s right to privacy versus the employer’s legitimate interests in conducting the test. Drug testing is permissible under limited circumstances:

  • Pre-employment: Being drug-free is a condition of employment
  • Reasonable suspicion: Allowed when an employer believes that a worker may be impaired
  • Post-accident: Only allowed if the employer thinks impairment contributed to the accident
  • Routine or random: These tests are only allowed for specific job classifications
  • Local restrictions: Some cities have enacted ordinances related to drug testing

Review policies regarding drug testing and marijuana use

Employers whose policies prohibit marijuana use should review their rules regarding drug testing as well as a drug-free workplace. An experienced employment law attorney here in California can ensure that new policies are legal under current laws or help employers update their existing rules.