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.

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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.

Other states have passed laws providing the same protections proposed in California. In 2017, the Supreme Judicial Court of Massachusetts analyzed the Massachusetts medical marijuana law, which explicitly provided that patients would not be denied “any right or privilege” afforded by state law on account of their medical marijuana use. The state’s highest appellate court interpreted that law to mean that these medical marijuana users could not be deprived of their right to reasonable accommodation of their medical issues.

These efforts, however, have not yet come to pass. It appears that California employers can continue to enforce a zero-tolerance drug policy for the time being.

Complications of Marijuana Testing in the Workplace

Despite the continued validity of zero-tolerance policies, some California employers have begun to move away from the hard and fast rules and to relax their drug testing policies. Some of this migration has occurred in recognition of the shift in public sentiment and a corresponding potential shift in the law. Other reasons can be attributed to the belief that, in a society where marijuana use is becoming increasingly normalized, a zero-tolerance policy could deprive the company of talented employees.

California permits “suspicionless” preemployment drug testing after an offer of employment is made. To be valid, however, the employer must test all applicants—or at least all applicants for the positions subject to the drug testing—and must treat all similar results uniformly and consistently. So, for the employer that chooses to subject all new hires to preemployment drug testing, the employer must have a uniform response to all employees who test positive for marijuana. Outside of a uniform preemployment drug testing, employers can only require drug tests of employees if there is a reasonable suspicion that the employee has been using drugs.

This uniform application is where marijuana testing often hits a snag. Unlike alcohol, which is typically metabolized in the body in a matter of hours, marijuana and its related chemicals can remain in an individual’s system at detectable amounts for days or even weeks, depending on factors, including the individual’s body type and chronicity of use. These detectable amounts also continue to exist long after the individual ceases to be in an altered state. As a result, a habitual user and a person who only ingested marijuana once in the days or weeks prior could both have the same positive test for the drug. And the company would have to treat them similarly.

Making an “exception” for a talented individual who only smoked once or twice could begin to endanger the legality of the entire drug testing policy and create the illusion that the zero-tolerance policy was pretext for other ulterior motives.

Marijuana’s lingering traces similarly present a conundrum for companies dealing with existing employees. Unlike a preemployment drug test, an existing employee can only be subjected to mandatory drug testing if there is a reasonable suspicion that the employee has been under the influence of drugs. Yet, with marijuana, a positive drug test does not indicate whether the employee was under the influence of the drug while performing services for the employer. Therefore, any employee who ingested marijuana and later found himself or herself subjected to a later drug test (if, for instance, the employee was the victim of a workplace accident that gave rise to a reasonable suspicion) could be subject to termination regardless of whether the employee was, in fact, under the influence at the time.

Potential Paths Moving Forward

Each employer’s decision on how to balance the competing interests will be based on the company’s values, ethics, and needs. Some employers may decide that they will continue to maintain a zero-tolerance policy for any number of reasons. These reasons could include the company’s ethics and morals or the decision that safety concerns inherent to its trade necessitate a policy that prevents any possibility that employees are working under the influence.

Other employers may decide that the proclivities of the talent pool from which they are pulling candidates necessitates either doing away with preemployment drug testing entirely or excluding marijuana from the drug screening.

Lastly, some employers may decide that a middle-of-the-road approach fits their needs best. These employers could decide to limit their preemployment marijuana screenings to particular positions or roles where there is an increased risk posed if employees are working under the influence. By clearly establishing how and why certain positions must be subject to marijuana testing, the companies would be well-positioned if California law ever grants employment protections to medical marijuana users.

Regardless of the path each company chooses, the two facts to remember are: (1) any pre-employment drug testing policy must be consistently and uniformly applied and (2) marijuana use is an issue that is here to stay for California employers.

Patrick Allen is a member of the Labor and Employment Practice Group in Buchalter’s San Diego office. Allen represents employers in single-plaintiff and class action litigation involving discrimination, harassment, wrongful termination, and wage and hour violations. He regularly counsels corporations and nonprofit organizations across a wide variety of industries, including biotechnology, construction, hospitality, and health services.

Jeffrey Lewis is a member of the Healthcare, Labor and Employment and Litigation Practice Groups in Buchalter’s San Diego office. Lewis focuses his practice on complex business and commercial litigation in the healthcare industry.