Just because marijuana is legal, doesn’t mean your employer can’t fire you for failing a drug test. You may not like it, but there is really nothing you can do about it except find a more enlightened boss.
In California, recreational marijuana sales started in January, causing many employers in the state to re-evaluate their substance-abuse and drug-testing policies. But the rules governing marijuana and the workplace haven’t really changed. At least not yet.
According to the Society for Human Resource Management, companies are allowed during the hiring process to test for illegal substances at the applicant stage—though it is unclear if marijuana is “illegal,” since it is permitted under state law but remains illegal under federal law. Employees should think about recreational marijuana like alcohol, Walter Stella, an attorney with Miller Law Group in San Francisco, told SHRM.
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Stella says that California citizens have a constitutional right to privacy — which restricts employers from monitoring off-duty conduct. Pre-employment drug testing, however, is permitted as long as it is conducted in a fair and consistent manner and administered to all applicants who are applying for a position within a specific job class.
After employees start working, they have a higher expectation of privacy — so drug testing should be limited in most cases to suspicion-based inquiries, Stella says. Northern California companies need to also pay attention to local laws regarding drug testing. In San Francisco, for example, randomly testing employees for drugs is prohibited.
“A high priority for California employers is the management of medical marijuana issues in the workplace,” Michael Nader, an attorney with Ogletree Deakins in Sacramento, told SHRM. “Marijuana remains a Schedule I drug that is illegal under federal law, and it is also well-established under California law that employers may rely on federal law in enforcing drug-free workplace policies.”
