With the sale of recreational marijuana becoming legal in California, many businesses have been left wondering how the new law applies to the workplace. While some employees may think that they now have the right to smoke freely, some employers may be rushing to update their company handbook to address the new law. To answer many of the questions surrounding this issue that are circulating within the business community, we reached out to employment attorney and long time Carlsbad Chamber member Lou Storrow, Esq.

What does California’s legalization of marijuana mean for employers and employees?

Nothing has changed in the workplace as a result of the new law.  Employers are not required to permit the use of marijuana by their employees, even while off duty.  Employee handbooks and drug policies that were legally sufficient in December are still good today (as far as drug use is concerned).

Is it legal to smoke anywhere? At home, car, bus, workplace?

No.  Smoking weed in public places is still illegal, as is carrying an “open container” of weed in a car.  Even an employer who wants to permit the use of marijuana at work has to follow numerous restrictions.

What happens if you show up to work with marijuana in your system?

Since employers can’t tell if you’ve had marijuana just before coming to work or 12 hours ago, an employee with marijuana in their system is not protected and can be fired.

What about medical marijuana use?  Am I protected as an employee with a disability?

No.  Even a medical permit does not mean an employer has to “accommodate” the employee’s use of marijuana.  Because it’s still prohibited by federal law, employers are legally allowed to ban it from the workplace in all forms and to fire employees who have ingested it.

Can my employer ask for a drug test at any time?

No, most employers may not conduct random drug tests on all employees.  Drug testing can be done under limited circumstances – including reasonable suspicion (usually based on behavior), as a pre-condition of hire, after an accident or injury takes place, or when required by federal law (for example for truck drivers).

What if an employer discovers marijuana in an employee’s office?

You’re fired (probably)!  There’s no protection for having marijuana in your office or anywhere on the employer’s premises.

As an employer, can I smoke marijuana in my office?

Not unless you’re the only employee and your office is at home – and no one comes to your office for business.  California’s smoking restrictions now include marijuana use, and most workplaces are off limits to smoking under the Labor Code.

What are my rights as a potential employee if I use recreational marijuana? Can a potential employer decide not to hire me over a marijuana test that came out positive?

Yes, because marijuana use is not protected, it’s just permitted under state law for personal recreational use.

So, you have the right to smoke at home but no right to hold a job and smoke at home.  BUT – if an employer allows other employees to use marijuana and fires you for another reason while saying it’s because of pot use, you could have a legitimate case.  In that case, the marijuana use might be a pretext for an unlawful termination, depending on the facts.

For more information, please visit cannabis.ca.gov/