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Recreational Marijuana Use At Work Protected Under Proposition 64?

With the passage of Proposition 64 making recreational cannabis legal in California beginning January 1, 2018, California employees are wondering if they can now use marijuana on and off the job without repercussions. While no court has addressed this issue head-on under the new law, employees attempting to assert their right to use medicinal marijuana under the Compassionate Use Act of 1996 [Health & Safety Code section 11362.5] on and off work hours found California courts were not persuaded. In the 2008 case, Ross v. Raging Wire Telecommunications, Inc., the California Supreme Court held that employers are not required to accommodate an employee’s medicinal marijuana use, irrespective of the Compassionate Use Act.

Even with the advent of the recreational cannabis use law, more likely than not employees will have no greater rights or protections to use marijuana. First, Federal Law still prohibits the use of marijuana. Second, with medicinal marijuana, which has been legal in California since 1996, courts have held employers with clear health and safety and drug use policies may lawfully terminate or refuse to hire individuals whose use of medicinal marijuana may result in a health and safety problem in the workplace. Third, and most perhaps most persuasive, Proposition 64 included language expressly protecting an employer’s right to test for drug use including marijuana and to terminate over such drug use.

Employers would be wise to inform employees through posting or an employee handbook of their cannabis-use policy. Otherwise, it is possible an employee terminated for legal use of marijuana may convince a California court they were subjected to discrimination or retaliation, but the jury is still out on how this may play.

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