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Wells Fargo Plaza
401 B Street, Suite 1200
San Diego, California 92101
(t) 619.231.0303
(f) 619.231.4755
www.swsslaw.com
Daniel E. Gardenswartz
Partner
[email protected]
(f) 619.615.7922
ISSUES FACING EMPLOYERS WITH EMPLOYEES
USING MEDICAL MARIJUANA
1. Pre-hire
After making a conditional offer of employment the Director of HR explains that all candidates must
pass the company’s standard drug screen. The candidate says that’s fine but advises that he will test
positive for marijuana and provides a copy of his medical marijuana card.
Can the company refuse to hire the candidate?
--see handout
--see also Pilkington Barnes Hind v. Superior Court, 66 Cal. App. 4th 28 (1998) (applicant extended
offer of employment but failed drug test by testing positive to marijuana; court rejected argument
that test was an invasion of privacy because diminished expectation as an applicant, and rejected
suggestion that employee had a right to engage in illegal activity while away from work)
--Cal. Lab. Code § 96(k) (authorizing the Labor Commission to adjudicate ‘‘claims for loss of wages
as the result of demotion, suspension, or discharge from employment for lawful conduct occurring
during nonworking hours away from the employer’s premises’’).
--California Code of Regulations, Title 2, §7294.2 (An applicant or employee who currently engages
in the use of illegal drugs or uses medical marijuana is not protected as a qualified individual under
the FEHA when the employer acts on the basis of such use, and questions about current illegal drug
use are not disability-related inquiries.)
2. Drug testing
2.1 A current employee is involved in a serious car accident and is sent off for a drug test per
company policy. The employee tests positive for marijuana but explains it is for his chromic pain
condition and provides proof to that effect. Can the company terminate the employee?
--See Kraslawsky v. Upper Deck, Inc., 56 Cal. App. 4th 179 (1997) (a factual dispute over whether
employer had reason to believe employee was impaired, and whether the supervisor who requested
the test bore some personal animosity to plaintiff, precluded summary judgment in employer’s favor)
2.2. Assume an employee works as a forklift driver and tests positive for marijuana as a
result of a random drug test. The employee has a valid medical marijuana card. Can the employer
terminate the employee?
--See Smith v. Fresno Irrigation District, 72 Cal. App. 4th 147 (1999) (random drug-testing program
upheld for employees who perform safety-sensitive work, which includes a position in which an
impairment could pose a real threat to employee or his coworkers).
3. Reasonable Accommodations
3.1 An employee working as a valet parking cars explains that he is taking medication that
makes him nauseous, and to curb the nausea the doctor also proscribed a form of medical marijuana.
As a result he has slightly impaired judgment and wants to work at the kiosk taking payment instead
of parking cars.
Must the employer provide the requested accommodation?
3.2 An employee with chronic back injury incurred during his time in the service uses the
drug to manage his pain. He has lately been coming in late to work and when provided a write up for
this behavior explained that he does not use marijuana during working hours, but it does make it
difficult for him to get up in the morning. The supervisor then informs HR. The company has a strict
no tolerance policy for any illegal drug use. Can the company terminate the employee?
--Ross v. Ragingwire Telecommunications, Inc. 42 Cal.4th 920 (2008) (no requirement to
accommodate medical marijuana use under federal or state law, based in part on the lack of
“accepted medical use in treatment in the United States”).
5. Leaves of Absence
An employee informed HR, in confidence, that his use of medical marijuana has led to a dependence
on the drug, and requests a leave of absence to check himself into rehab. Must the employer provide
the requested leave?
Labor Code §1025. Every private employer regularly employing 25 or more employees shall
reasonably accommodate any employee who wishes to voluntarily enter and participate in an alcohol
or drug rehabilitation program, provided that this reasonable accommodation does not impose an
undue hardship on the employer. Nothing in this chapter shall be construed to prohibit an employer
from refusing to hire, or discharging an employee who, because of the employee’s current use of
alcohol or drugs, is unable to perform his or her duties, or cannot perform the duties in a manner
which would not endanger his or her health or safety or the health or safety of others.
6. Benefits/Insurance
Your company has a policy of reimbursing employees for non-covered medical expenses up to a
maximum of $2,500 in out of pocket expenses. An employee submits an expense for proscribed
medical marijuana in that amount, because no insurance carrier will cover any of that cost.
Should be employer process the request for reimbursement?
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7. Social Media
An employee posts to her Facebook “friends” a picture of herself smoking a joint, with the following
message: “This is the only thing that relieves the constant stress we have at work. What is a person
to do?” Several of her Facebook friends are also co-workers, one of whom forwards the posting to
her supervisor. Can the company terminate her employment?
--See NLRB Decision re Hispanics United of Buffalo, Inc. and Carlos Ortiz, Case No. 03-Ca027872 (2012).
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