Despite recreational legalization, adult cannabis users may still face challenges when they apply to jobs. Prop. 64 allows for adults over the age of 21 to buy, sell and consume marijuana without a medical card or doctor’s recommendation. Despite this progress, Californians who partake recreationally, or even medically, may still face challenges in the workplace.
California companies can require applicants to pass a drug test as a condition for their employment (i.e, after the job offer has already been made) and periodically depending on their occupation. Drug tests may also be given if employers suspect drug use that inhibits performance – if you’re showing up to work drunk or high it’s not unreasonable that you’ll end up having a chat with HR.
According to the Society for Human Resource Management, drug tests screen for illegal substances, such as cocaine and heroin, but many also test for marijuana. Marijuana falls into a legal grey area since it’s still considered an illegal, Schedule 1 substance under federal law even though many states have taken steps to legalize and decriminalize pot.
Unlike other states, California maintains an employee’s right to privacy which prevents employees from monitoring their workers when they’re off the clock. This safeguard protects your right to have a beer after work or write a personal blog but may not protect your choice to roll a joint on a Friday night.
The California Supreme Court still allows employers to fire or refuse to hire people whose drug tests show cannabis. Employers peeved about pot can still uphold their decision not to hire based on the fact that the federal government still criminalizes pot as a Schedule 1 substance with “no currently accepted medical use and a high potential for abuse.”
But what if you’re using pot for a medical condition, under doctor’s orders?
Californians can use medical cannabis for with written permission from a doctor and even carry a small amount of medical marijuana at California airports and in public places. Still, employers who use medical marijuana may face discrimination in the workplace.
California’s Supreme Court does not protect medical marijuana users from termination and, at the time of this writing, does not offer “reasonable accommodation” to them. Reasonable accommodation for employees with a known disability, such as chronic pain or partial deafness, may include things like modified chairs, the ability to work from home or special keyboard and computer monitors. These accommodations are protected under the Fair Employment and Housing Act (FEHA), but do not extend to medical marijuana users.
As attitudes towards marijuana use change, especially at the federal level, cannabis users may enjoy more protections under the law. Proposed changes to the FEHA, via AB 2069, would include anti-discrimination protections for medical marijuana users and provide them with reasonable accommodation to medicate.