Policies addressing marijuana use are more important than ever

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As of January 1, 2018, “adult use” or recreational marijuana became legal in California. Since then, hundreds of dispensaries have opened across California selling marijuana products to any adult over the age of 21. However, this change has surprisingly little impact on your rights and responsibilities as an employer.

Employers may still maintain workplace policies prohibiting the off-duty use of marijuana, to drug test employees and applicants, and to terminate or deny employment to persons who test positive. Even when an employee uses medicinal marijuana pursuant to a doctor’s recommendation, that is no obstacle to employer discipline, including termination. The California Supreme Court has held that California’s anti-discrimination law, the Fair Employment and Housing Act (FEHA), does not require employers to accommodate an employee’s medicinal marijuana use. (Ross v. RagingWire Telecommuncations, Inc. (2008) 42 Cal.4th 920.) Nothing about the legalization of recreational marijuana in California changes that.

However, if employers are not clear about their marijuana policies and consistent in enforcing them, employees who are terminated for marijuana use will claim selective enforcement and that the marijuana use is only a cover for a different, unlawful reason for their termination. Workplace policies regarding drug use should be in writing and acknowledged by employees at their time of hire. Employers who already maintain written policies prohibiting marijuana use should consider reiterating their policies in writing and clarifying that the new state law has had no effect on them. Clear, documented communication of workplace rules regarding marijuana are key to being able to enforce them.