Marijuana and the Workplace: What You Need to Know

marijuana and the workplace

The laws regarding marijuana use are confusing and constantly changing.

Because marijuana use is illegal under federal law, but legal in California, it can be difficult for California employers to know how to set policy.

Employees are equally unsure of whether they can use marijuana without violating a workplace rule.

Ottinger Employment Lawyers is here to answer some common questions.

What Is the Difference Between Recreational Use and Medical Use and Are Both Legal in California?

Both recreational and medical use is legal in California.

Recreational use means anyone 21 years of age and older may possess and use no more than 28.5 grams of cannabis or eight grams of concentrated cannabis on private property where it is allowed. 

Medical use allows seriously ill Californians to purchase or cultivate cannabis (with a doctor’s oral or written recommendation) for use in alleviating their pain or other symptoms.

A medical marijuana ID card is not required. 

Can Employers Test for Marijuana Use When I Apply for a Job?

Yes, but only after the employer makes a conditional offer of employment.

Can My Existing Employer Test for Marijuana Use?

Yes, if the company follows clear drug testing policies. The employer must previously have notified you of its policies and obtained your written acknowledgment. 

Can I Be Fired for Testing Positive for Marijuana?

Yes. Nothing in the recreational or medical use laws requires employers to tolerate impairment in the workplace.

And because some tests detect marijuana up to 90 days after use, you may test positive at work as a result of off-duty use.

Does My Employer Have to Accommodate My Use of Medical Marijuana in the Workplace?

No. However, an employer may accommodate medical marijuana use so long as it does not violate any laws or impact safety.

Be sure to discuss this with your employer and review the company’s medical marijuana and workplace drug testing policy.

I Work for the Federal Government in California. Can I Be Fired for Testing Positive for Marijuana in the Workplace?

Definitely. The Controlled Substances Act classifies marijuana as a Schedule I substance.

That means that federal law prohibits growing, distributing, using, manufacturing, or possessing marijuana.

Executive Order 12564—Drug-Free Federal Workplace requires all federal employees to refrain from using illegal drugs while on or off duty.

How About Products Containing Cannabidiol (CBD) or Hemp? Can I Use Those at Work?

Maybe. Federal law classifies any product containing less than 0.3% of tetrahydrocannabinol (THC) as industrial hemp, which is legal to produce.

In October 2021, California passed Assembly Bill 45, which allows a variety of products to include CBD or hemp so long as a laboratory certifies that they contain less than 0.3% of THC. 

By making these products comply with federal regulations, California legislators hoped to make it easier for Californians to sell and use these products.

Unfortunately, not all CBD and hemp products contain reliable THC levels, and the Food and Drug Administration does not regulate them, so you still risk testing positive on a marijuana drug test.

Also, some employers may have policies prohibiting CBD and hemp use. It’s best to carefully review your company’s policies. 

Will My Company Change Its Drug Policy Any Time Soon?

Probably. A number of factors make it hard for California employers to maintain strict zero-tolerance drug policies. 

First, in today’s competitive job market, it is hard to attract and retain employees, and restrictive marijuana use policies may drive candidates away.

Because there is not yet a reliable way to test impairment level, simply testing for the presence of marijuana effectively prohibits off-duty use.

Second, with the increase of remote workers, employers have difficulty monitoring drug use. 

Third, employers run the risk of violating anti-discrimination laws that protect disabled employees.

Some disabled employees already have filed lawsuits related to medical marijuana and workplace discrimination.

While California employers currently are not required to accommodate medical marijuana use, disabled employees’ use of CBD and hemp products presents a grayer area. 

Finally, a study showed that drug testing is more prevalent in workplaces employing racial and ethnic minorities.

Employment policies that have a disparate impact on certain racial or ethnic groups run the risk of violating anti-discrimination laws.

For this reason, Amazon scrapped its marijuana testing program last year (except with regard to jobs regulated by the Department of Transportation). Other companies may follow suit. 

What Should I Do If I Still Have an Issue Concerning Marijuana and the Workplace?

Contact Ottinger Employment Lawyers. For over twenty years, we have focused exclusively on employment matters like wrongful termination and employment discrimination.

We can help you navigate this complex area and find a solution. 

Author Photo

Robert Ottinger, Esq.

Robert Ottinger is an employment attorney who focuses on representing executives and employees in employment disputes. Before starting his firm, Robert slugged it out in courtrooms trying cases for the government. Robert served as a Deputy Attorney General for the California Department of Justice in Los Angeles and then as Assistant Attorney General for the New York Attorney General’s Office in Manhattan.

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