Prescribed marijuana vs. workplace drug testing

This week’s question comes from Amy T. in San Mateo, who asks:

Q: I take medical marijuana to help me with my anxiety and am applying for a new job. I don’t drive a bus or engage in any hazardous work, such as an equipment operator, police officer or fireman. I am a secretary and the employer says part of the application process is a drug test. They also say that I can be subject to randomized drug tests. Can they refuse to employ me or fire me if I have a prescription for medical marijuana and show up positive on a test?”

A: Amy, his is a good question that I have had to address previously on behalf of a prospective client. On one hand, your anxiety may qualify as a disability — a condition, disease or process that limits one or more major life activities. Anxiety disorders are among the class of conditions that may qualify as a legal disability.

If an individual is disabled, yet still can perform the essential functions of his or her job with or without an accommodation, an employer must engage in a good-faith interactive process to see if a reasonable accommodation can be identified. An employer must provide that accommodation unless doing so would create an undue hardship on the enterprise. In determining whether an undue hardship would be created, the nature of the job and the available corporate resources are balanced against the right to an accommodation.

While the Compassionate Use Act gave marijuana the same status as any legal prescription drug, the act’s effect is not so broad. The courts have held that “no state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law.” (Ross v. Raging Wire Telecommunications, Inc. (2008) 42 Cal. 4th 920, 926; citing 21 U.S.C. §§ 812, 844(a))

An employer can require prospective employees to undergo testing for illegal drugs and alcohol and the employer can have access to the test results without violating California’s Confidentiality of Medical Information Act. (Civ.Code, § 56 et seq.) (Loder v. City of Glendale, supra, 14 Cal. 4th 846.)

The Loder Court held that “employers may deny employment to persons who test positive for illegal drugs.” The employer, we explained, was “seeking information that [was] relevant to its hiring decision and that it legitimately may ascertain.” The court held that the employer’s interest was legitimate “in light of the well-documented problems that are associated with the abuse of drugs and alcohol by employees — increased absenteeism, diminished productivity, greater health costs, increased safety problems and potential liability to third parties, and more frequent turnover…”

Although California voters had no power to change federal law, certainly they were free to disagree with Congress’ assessment of marijuana, and they also were free to view the possibility of beneficial medical use as a sufficient basis for exempting from criminal liability, under state law, patients whose physicians recommend the drug. The logic of this position, however, did not compel the voters to take the additional step of requiring employers to accommodate marijuana use by their employees. The voters were entitled to change the criminal law without also speaking to employment law. (Ross v. RagingWire. at 931.)

The Ross court stated that “the operative provisions of the Compassionate Use Act (Health & Saf.Code, § 11362.5) do not speak to employment law.” Except in their treatment of physicians, who are protected not only from “punish[ment]” but also from being “denied any right or privilege … for having recommended marijuana,” the act’s operative provisions speak exclusively to the criminal law.

So Amy, the status of California law is that you may be denied employment if you test positive for THC. The Compassionate Use Act protects you from arrest but not termination. Your options are limited. You can speak openly and honestly with a potential employer about your ability to pass a test or you can seek alternative employment at a location where they do not screen employees.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

Christopher B. Dolan
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Christopher B. Dolan

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