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California Employment Lawyers > Blog > Employment > Can You be Fired For Using Medical Marijuana At Work?

Can You be Fired For Using Medical Marijuana At Work?

EmploymentLaw

In 1996, California led the nation by becoming the very first state to make medical marijuana usage legal. But don’t be fooled–that doesn’t mean that an employee has a legal right to use marijuana in the workplace, if the employer otherwise forbids its usage.

Marijuana is Still Illegal

This is because of the interplay of the federal and state governments; marijuana remains illegal at the federal level, despite being legal in many states including California.

That means two things: If you have a federal government job, you definitely can be fired or not hired because you test positive for marijuana, but even if you don’t have a federal government job, an employer can still implement and enforce a “no marijuana” policy.

The ADA Doesn’t Help

Unfortunately, even the Americans With Disabilities Act doesn’t protect California workers. California courts have ruled that the “accommodations” that employers normally must make for employees with qualifying disabilities, does not extend to allowing the use of medically prescribed marijuana, so long as marijuana remains illegal under federal law.

Most of the cases that say that the ADA does not include allowing the use of marijuana are not related to employment, but given those cases do address the ADA, it is unlikely that an ADA claim against an employer who punished an employee for using medical marijuana to treat an otherwise ADA-protected disability would be successful.

Legality of Drug Testing at Work

However, there are still only certain times that an employer can drug test employees. They include:

1) Before, and as a condition of, hiring or employment

2) As part of a physical exam

3) If there is reasonable suspicion that the employee is using drugs

4) After an accident on the job

5) as part of an established, random testing program that applies to all company employees.

This means that if you were terminated or had some kind of adverse action at work because of the results of a drug test (particularly marijuana), the question may not be whether the company can fire you for using marijuana–it likely can–the real question will be whether the company had a right to drug test you the way it did in the first place.

Off-Work Positive Tests

There also may be a claim in the event that an employer were to terminate you for off-work drug usage, if the employer never takes a drug test at all, and assuming that the off-work usage is not impacting performance at work.

Getting fired for using or testing positive for legal, medically prescribed marijuana creates complex legal issues, and many of those issues are still not legally determined. Get legal help if you think you are the victim of an adverse action at work, because of the use of medically prescribed marijuana.

Contact the San Jose employment law lawyers at the Costanzo Law Firm today for help if you feel you may have a claim for discrimination of any kind.

Sources:

employmentlawhandbook.com/workplace-behavior/marijuana-marijuana-cards-and-reasonable-accommodations-under-the-ada/

jdsupra.com/topics/ada/medical-marijuana/reasonable-accommodation/

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