What happens if a potential new hire has a medical marijuana card or uses marijuana recreationally? How will this work if he fails his pre-employment drug test?

Despite the legalization of cannabis/marijuana, employers may continue to maintain drug- and alcohol-free workplaces, including prohibitions on marijuana. Proposition 64 specifically allows employers to maintain drug- and alcohol-free workplaces and does not require employers to permit or accommodate marijuana use, possession or sale in the workplace. In addition, marijuana remains illegal under federal law.

Moreover, an employer is not required to allow employees to use medical marijuana as a reasonable accommodation under California’s Fair Employment and Housing Act.

In 2008, the California Supreme Court held that it is not a violation of California law for an employer to terminate an employee who tests positive for marijuana, even when the employee was prescribed marijuana for medical purposes under the Compassionate Use Act (CUA).

Additional concerns arise under Occupational Safety and Health Administration requirements, which obligate employers to provide a safe workplace for all employees.

Studies have shown that employees who use marijuana are more prone to accidents, injuries and absenteeism. When such an employee works in a safety-sensitive position, marijuana use is unlikely to be a reasonable option.

Meaning of a Positive Test

A challenging issue is determining whether an individual is truly “under the influence.” Cannabis testing often detects non-psychoactive cannabis metabolites that can remain in a person’s system for weeks after use. As a result, an individual may test positive for marijuana without being impaired at the time of the test.

Nevertheless, current law allows California employers to conduct pre-employment drug testing of applicants and deny employment if the test result is positive. Employers that conduct pre-employment drug testing should inform all applicants of the policy and clearly state that testing includes marijuana.

Employers should be aware, however, that California’s Fair Employment and Housing Act prohibits discrimination against employees or job applicants based on off-duty cannabis use away from the workplace, which affects pre-employment testing practices.

Employers may still refuse to hire an applicant based on drug test results, but only if the test is a valid pre-employment screening that does not test for non-psychoactive cannabis metabolites. These metabolites remain in the body longer than the psychoactive compound tetrahydrocannabinol (THC).

California law does not permit employees to possess, be impaired by or use cannabis on the job, and it preserves employers’ rights and obligations to maintain a drug- and alcohol-free workplace.

Employers with drug testing policies and practices should consult legal counsel and work with their testing providers to ensure compliance with applicable law.