What Legal Protections Are Available to Employees who Use Medical Marijuana in California?

May 28, 2021

Does California offer any legal protections to employees who use medical marijuana? The answer is: it's complicated.

California is now one of a handful of states that have legalized marijuana for medical use (the first state to do so in this instance) and recreational users. The laws in California for employees who use medical marijuana, although they do offer protection, are still a bit obscure.

How the law and its interpretation play out in common scenarios

Can your employer check to see if you are a medical marijuana user?

Your employer cannot check to see if you have a medical marijuana card due to California Privacy Laws and HIPAA. Employers do not have access to any sort of government ID system to determine this information.

However, in the past, a California employer evaded violating HIPPA laws or California privacy laws by purchasing data from dispensaries to determine if their employee had purchased marijuana from a particular location or chain of establishments. Recently passed marijuana laws no longer allow dispensaries to sell any personal information of their customers to anyone.

Aside from the developing state law protections for employees engaging in both medical and recreational marijuana use, employers usually maintain the right to assert a drug-free work environment and forbid use and consumption in the workplace.

Can your employer have you drug tested for marijuana?

Employers can hand you a drug test, but they cannot single out and discriminate against one employee without good cause.

The employer also cannot explicitly target an individual based on race, nationality, disability or any other discriminatory reasons.

Drug testing an active employee in California is subject to safety matters or the test's necessity in the first place. For instance, unless an employee's duties impact public safety, then random drug testing is not usually deemed legal. Suppose a drug test is brought before a court; a judge will weigh in and debate the employer's reasoning for requiring the drug test versus the employee's right to privacy. The judge will determine if the drug test was considered legal and just or encroaching on the employee's rights and the marijuana laws.

Another example is job applicants. If one applicant for a position is drug tested, then all of the other applicants for that particular position must be tested, too.

What to do if you've been hired and are a medical marijuana user? It's best to check the company policies, which you may find on their website. Also, check the employee handbook for guidance. Additionally, know your rights and continue to stay informed on the continually evolving California marijuana laws.

Is your employer attempting to have you drug tested, or have you recently been fired and know or strongly believe it's due to medical marijuana use? Do you feel singled out and uncomfortable in your work environment because you are a medical marijuana user?

The following steps will be critical: take action in protecting your rights by contacting a trusted and experienced attorney in employment law, well-versed in employee rights and marijuana laws. If you feel you are being discriminated against in the workplace due to your use of legally prescribed medical marijuana, contact the Law Office of Jeremy Pasternak today at 415-693-0300,

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