Employers Can Test for Marijuana use in California, Even After Prop 64

Image of marijuana joint in a hand. California employment law prohibits THC in employment laws.

Can you still be fired for smoking pot in California?

On Tuesday, November 8, 2016, Californians overwhelmingly approved Proposition 64, which legalizes the recreational use of marijuana for adults.  However, employees in California should be aware that Prop 64 may not protect them from being tested for marijuana use, or being terminated based marijuana use.

If you are challenged by alleged use of pot in or around your work hours, contact Los Angeles employment rights attorneys for advice and case assessment now. Your job and livelihood could be at risk!

Marijuana is (Technically) Still Illegal

Proposition 64 is limited to California law.  So while the use and possession of marijuana is now legal under the eyes of the California government, marijuana remains a Schedule I drug at the federal level and therefore, still very much illegal.  For the average recreational user in California, this technicality may not have much significance.  In all likelihood, local law enforcement officers in California will enforce California’s laws regarding marijuana, as opposed to the federal laws.  However, in the employment context, employees must beware.

California Employer’s Can Test and Terminate for Marijuana Use

For years, medical marijuana has been legal in California, but remained illegal at the federal level.  Both the California Supreme Court and the Ninth Circuit held have held that an employer can terminate an employee for using marijuana, even if it were for medical purposes.  While employees might argue that medical marijuana use is a “reasonable accommodation” under the Americans with Disabilities Act, or under the Fair Employment and Housing Act, courts have allowed employers to prohibit medical marijuana use, because it remains illegal at the federal level.  For the same reasons, courts might hold that California employers can prohibit marijuana use, even if California law allowed for such use.  Regardless of what courts say on the issue, Prop 64 explicitly provides that employers may enforce drug and alcohol use policies and may prohibit use of marijuana.

Despite all this, if your employer has taken action against you for failing a drug text, you may still be able to get your job back, or receive compensation.  Speaking with an employment attorney can help you to determine whether or not you have a case.  To speak with one of our employment lawyers today, call (760)-239-0230, or leave us a message here and we will contact you as soon as possible.


David Peer

About the author

David focuses his practice on civil litigation for small businesses and individuals. Prior to founding Peer & Hart, PC, David worked in WilmerHale's Los Angeles office litigating complex matters for multi-national corporations. David was a member of WilmerHale's patent litigation group and was on the trial team for large-scale patent cases in Federal Court. In 2015, David helped try a multi-week, billion dollar patent case. David also took part in government investigations and major discovery projects, giving him a deep understanding of efficiency and cost-reduction strategies in pre-trial litigation.

Since forming Peer | Hart, David has defended his clients from employment suits and actions in front of administrative agencies. David has negotiated favorable settlements and counseled his clients on cost effective litigation strategy and litigation prevention. David has an engineering degree and is registered to prosecute patents in front of the US Patent and Trademark Office.

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