Under California employee drug testing laws, California employers are, in general, permitted to require employees to undergo drug testing as a condition of their employment. For the drug test to be considered valid, however, an employer must test all applicants for a specific position.
In addition, an employer cannot single out a particular applicant based on their:
- Race;
- Nationality;
- Origin;
- Disability;
- Other discriminatory reasons.
It is important to note that randomly drug testing employees in California whose jobs do not impact public safety is typically not considered legal. If a drug test is called into question, a court will determine whether or not the drug test was legal by using a balance test.
With this test, the court will weigh the employer’s reasons for requiring the drug test against the employee’s right to privacy. The court will also consider other factors, including whether the drug test was used as a pre-employment screening before hiring the employee, was conducted randomly, or was done under reasonable suspicion of drug abuse.
Although the State of California has legalized the use of medicinal and recreational marijuana, an employer may still refuse to hire an individual who tested positive for the drug. In general, drug testing occurs when an individual is subjected to a particular medical examination that is intended to detect the presence of drugs or other illegal substances.
Drug testing can be court-ordered, such as during a child custody dispute, or it may be required by a school or employer in order to ensure the safety of certain individuals, such as persons playing collegiate sports or operating common modes of transportation like airplanes or buses. Examples of methods that a court or other entity may use to drug test an individual include:
- Reviewing a tube of their saliva or spit;
- Having them provide a urine sample that is used to test for various drugs;
- Using a sample of the individual’s hair;
- Undergoing a medical test that examines the nails of the worker.
If an individual believes they have been subjected to an unlawful drug test, they should consult with a local California attorney as soon as possible for legal guidance. An attorney can help determine whether a drug test is illegal and can discuss the potential options an individual has for legal recourse.
If I Have a Medical Card Can I Pass a Drug Test?
The legalization of medicinal marijuana in California has loosed the restrictions that were initially required to uphold medicinal marijuana laws. Medicinal marijuana users, for example, no longer need a medical card to obtain marijuana for medicinal purposes.
A valid medical marijuana card was required if an individual was prescribed marijuana to treat a specific medical condition. If an individual was not a registered cardholder, they were not permitted to purchase medicinal marijuana.
Currently, both recreational and medical users of marijuana are legally allowed to purchase the drug with or without a medical card. Recreational marijuana laws have made it more difficult to implement protections for medical marijuana users in the workplace.
Legislators in the State of California are still navigating how to handle employee protections and employer rights when it comes to marijuana possession and use in work environments. Although the use and possession in the workplace will most likely be banned for some time, off-duty use and possession are the primary issues that are causing California legislators to reexamine existing laws on the matter.
Can I Still Get a Job with a Medical Card?
Holding a medical marijuana card in the State of California does not automatically get a worker terminated from their job. As noted above, however, an employer is permitted to terminate an employee who tests positive for marijuana use.
A worker should still be able to secure a job with a medical card. Depending on the facts of the case, employers may be held liable for employment discrimination if the worker holds a medical card for a reason that is listed under the American Disabilities Act (ADA).
The employer may face legal repercussions for discriminating against persons who have a disability.
Can Employers See if I Have a Medical Card?
In general, it is illegal for an employer to check whether or not a worker holds a medical marijuana card. As noted above, however, an employer is still permitted to drug test an employee under certain circumstances.
Both California state privacy laws and Health Insurance Portability and Accountability Act (HIPAA) laws protect the personal contact information of individuals who register for medical marijuana cards. Employers do not have legal access to the California ID card system, which contains information on patients.
Privacy laws and marijuana legislation in the State of California have tried to crack down on selling personal information to third parties. In other words, an employer would only be able to check a marijuana dispensary by paying for the information.
However, based on recently passed marijuana laws, dispensaries are prohibited from selling the personal information of their customers.
Can Employees Who Use Medical Marijuana in California Be Terminated For Using Medical Marijuana?
Employees who use and possess medical marijuana may still be terminated if they test positive for the drug. This applies even in situations where the employee holds a valid medical marijuana card.
However, employees may be protected under California’s Compassionate Use Act. Although an employer has a right to maintain a drug-free workplace, employees who fall under this Act may have certain protections, for example, the right to be free from employment discrimination based on a disability or other discriminatory class and the right to receive reasonable accommodations in the workplace.
Employers are legally permitted to terminate, refuse to hire, or prohibit smoking on the premises, as well as take any other measures to maintain a drug-free environment for other workers and to keep all individuals safe at their jobs.
What Is the New Marijuana Law in California 2024?
Beginning January 1, 2024, under California employment laws, it is illegal for California employers to discriminate against hiring, firing, or punishing a worker based on their use of marijuana when they are not working and are away from the worksite.
What Can I Do if I’m Terminated for Medical Marijuana Use?
The laws governing marijuana in California have recently changed and are still developing. If you have any issues, questions, or concerns regarding medical marijuana use, it is important to consult with a California workplace lawyer.
The recent changes in laws may make it difficult for you to determine what to do in order to file a claim against your employer for wrongful termination for using medical marijuana without the help of an attorney. If you have been terminated from your position based on medical marijuana use or possession, you should contact a lawyer as soon as possible.
Your lawyer can answer questions about the legal process, including whether you have to file a complaint with a government agency first or whether you can sue your employer directly for wrongful termination. Your lawyer will also help you prepare and file your case, help you collect evidence to support your claim and provide representation in court.
Your attorney can also determine whether your case includes more than California employment law claims, for example, invasion of privacy issues, HIPAA violations, and various other related matters that may have constituted unlawful conduct by your employer.
