Legal marijuana presents unique challenges for employees

Although marijuana is now legal in California, employees can still be tested and fired for the drug.

In November of last year Californians passed Proposition 64, which legalizes the recreational use of marijuana in the state. Although, as Mic reports, Prop 64 was passed by well over a majority of voters in California, the new law also specified that legal marijuana would not take away the rights of employers to test for marijuana and even fire workers who test positive for the drug. The fact that workers can get fired for something that is now considered legal under state law has, understandably, led to quite a bit of controversy. Below is a look at how legal marijuana affects employment law and how workers can protect themselves.

Fired for legal marijuana?

While it may not seem fair, the truth of the matter is that employers are free to fire their workers for many things that are legal outside the workplace. As the Mercury News points out, for example, employees can be fired for smoking cigarettes or alcoholism, both of which are legal activities. Federal law does protect workers from being fired or discriminated against on the basis of race, gender, age, religion, or disabilities, with California law also protecting against discrimination based on sexual orientation, health condition, or military status. Those protections, however, do not extend to the use of marijuana.

With the passage of Prop 64, employers will have to revisit their drug policies. Some companies may find that having an overly restrictive drug policy limits the number of qualified applicants they can hire. On the other hand, being too liberal in their drug policies could lead to liability problems, such as if an employee is involved in a workplace accident and is later found to have marijuana in his or her system.

Even more complications

Things get even more complicated from there. Some employers are legally required to test their workers for drug use. Federal law, for example, requires that truck drivers be tested for drugs. Furthermore, even if a company decides not to routinely test for drug use, they may nonetheless test employees who are involved in a worksite accident. Even if impairment had nothing to do with the accident, the company could still use a positive drug test as justification for not compensating an injured employee properly.

And the problems with drug testing are numerous. The biggest issue is that there is currently no test that can determine how impaired by marijuana a person actually is at the time of testing. That's because THC, the active compound in marijuana, can remain in one's system for days or even weeks after the marijuana is consumed. That means that even if an employee tests positive for marijuana, that doesn't mean she or he was actually impaired while on the job.

Employment law help

As the above article shows, employees face a lot of challenges now that marijuana is legal in California. Anybody who has an employment law issue, including a potential wrongful dismissal case, should get in touch with an attorney today. An experienced attorney can help clients understand what options they have available to them, including the possibility of pursuing compensation.