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Legalized Marijuana and California Workplaces: What You Need To Know About The New Law

If you’re over the age of 21 and a California resident, it’s now legal for you to possess and use up to an ounce of marijuana for recreational purposes — no medical card required.

It’s important to understand that this new law basically changes nothing when it comes to the employment policies of businesses, however. Any private employer is still allowed to forbid employees from using marijuana on the premises, and drug testing is likely to still be legal for certain jobs in which it is seen as a necessary safety precaution.

If you do have a legitimate prescription and need for medical marijuana, things are a little more legally murky right now. Up until recreational use was legalized, having a medical prescription usually didn’t offer you any added legal protection or rights under employment law. Recreational legalization does open a potential legal window for putting marijuana on the same footing as prescription medications that contain controlled substances; however, it will take active challenges to existing law in court to accomplish this, and as of this writing one should not assume they have any new legal protections if they are a medical patient.

Public and Private Marijuana Use Under Prop. 64

Proposition 64 is the measure that passed in November and made marijuana legal in California. The bill includes a number of restrictions and stipulations, however. When combined, these are very similar to the existing restrictions on cigarettes and alcohol.

  • You have to be 21 to legally use marijuana (without a prescription).
  • You can’t smoke in public in any places where it would be illegal to also drink in public.
  • You can’t use marijuana on any type of government property.
  • Private property owners are free to forbid people on their premises from using marijuana (and largely will).
  • You can’t use marijuana while driving, and are still subject to general laws regarding intoxication.

Prop. 64 also specifically makes clear that private businesses can continue to set their own workplace policies regarding drug use. California law has always allowed employers to screen prospective employees as part of the application process, so long as they subject all applicants to the same test. Nothing in Prop. 64 changes this existing law, or adds special protections for medical users of marijuana. If a company decides they don’t want to hire marijuana users, they are still allowed to do that at present.

Though California law also technically allows random testing of current employees, it’s such a legal minefield that it is usually not done unless the position has significant security or safety responsibilities attached to it. Again, Proposition 64 doesn’t change anything about the current arrangement; if you use recreationally and fail a random test, it’s still legal grounds for termination if you agreed to such a policy when you were hired.

Prop. 64 allows both private and public entities to set their own drug policies in this way. When it comes to public jobs, such as jobs working for state or county governments, things are a bit different, however. Public employees have more specific legal protection under California law when it comes to random testing while on the job. However, they get no added protections from initial drug screenings, or for random tests that are within the bounds of the law.

Legal Protection For Marijuana Users

While employers still have some freedom to terminate marijuana users, all is not lost if you believe you have been terminated unfairly. Even with a failed drug test, there are still laws and procedures that employers must follow, and they are not allowed to discriminate on any other basis. If you need legal assistance in challenging your employer, contact us for the most experienced representation in the East Bay area.