Punching the Clock: Can You Be Fired for Marijuana Use in California?

Marijuana may be legal in California, but that does NOT automatically mean your job is protected. In this episode of Punching the Clock on The AM Sidebar Podcast, employment attorney Mila Arutunian breaks down the complicated intersection of marijuana laws, workplace rights, employee protections, drug testing policies, and employer responsibilities in California.

As more states legalize recreational and medical cannabis, employees are asking critical questions:
-Can I be fired for smoking weed off the clock?
-Does a medical marijuana card protect my employment?
-Can my employer still drug test me?
-What happens if I test positive after a workplace injury?
-Can companies refuse to hire me because of cannabis use?

Mila explains how California’s new marijuana employment protections work, including laws that limit employers from relying solely on non-psychoactive THC metabolites in drug tests. She also discusses the major exceptions for federal employees, safety-sensitive industries, transportation jobs, healthcare workers, construction, law enforcement, and federal contractors.

Transcript

SPEAKER_00 0:06

Can I be fired for marijuana use? Hi, this is Mila Eritunian for punching the clock on the AM sidebar. As an employment attorney, I get asked all the time about workers' rights at work. People want to know things like: Am I owed overtime pay? If I'm on salary, is it legal to date someone at work? What exactly counts as harassment? But recently, a question I'm getting asked a lot is: can I be fired for marijuana use if it is legal in my state? Especially if I have a medical marijuana card. So we're in California where weed is now legal. And on April 23rd, the Department of Justice officially reclassified marijuana from a Schedule 1 to a Schedule III drug. So this is coming up more and more in our practice. Let's get into it. I'm gonna break this down by answering the most common questions I receive about weed and the workplace one by one. The first question I get is can I be fired for using marijuana outside of work? The honest answer is it depends heavily on where you live and what kind of job you have. Here's what surprises people the most. In most states, even states where marijuana is completely legal recreationally, employers can still fire employees for off-duty marijuana use. Why? Because marijuana is still illegal under federal law. And for years, most states legalized weed without adding meaningful workplace protections. So what happened was people assumed if it's legal, my job is protected. I can do it, right? But legally, those are two different questions. Now, California has changed the game a little. Starting January 1st, 2024, California passed laws giving employees significantly more protection for lawful off-duty cannabis use. Specifically, employers generally can't rely only on non-psychoactive THC metabolites, basically old traces of marijuana in your system, to make employment decisions. Now, this is huge because traditional drug tests don't tell employers whether you're high right now. They tell employers whether marijuana was in your system at some point in the recent past. And those traces can stay in your body for days or even weeks. So California basically recognized there's a difference between someone being impaired at work and someone legally using marijuana on their own time when they're off the clock. But, and this is really important, California did not create a free-for-all. Okay, employers can still prohibit impairment at work. And employers can still maintain drug-free workplace policies, and that includes marijuana. That means employers can discipline employees who are actually impaired on the job. And there are major exceptions. For example, if you work for the federal government, for a federal contractor, in transportation, law enforcement, certain healthcare settings, construction tied to federal funding, or jobs involving security clearances, you may have dramatically less protection. That means you can't even consume marijuana off the job. So the first thing I tell people is don't assume legalization automatically equals workplace protection because it absolutely does not. The second question I get is can my employer still drug test me? Yes. This shocks people because they think California's new laws eliminated marijuana testing, but they didn't. Employers can still drug test. But here's what's changing is how employers use those drug tests. And this is where science and the law start colliding. Traditional urine tests for THC metabolites, meaning leftover traces, not current impairments. So you could legally use marijuana on Friday night, be completely sober all week, walk into work Thursday morning, and still fail a urine test. That's the exact issue California lawmakers were trying to address. Now, employers are shifting newer testing methods, specifically saliva testing, because they believe those tests are more connected to recent use. But here's the problem courts are still trying to figure out what legally counts as impairment. You see, unlike alcohol, there's no universally accepted marijuana equivalent to a 0.08 blood alcohol level. So employees are trying to navigate workplace safety, evolving science, state law protections, and federal restrictions all at the same time. This is why this area of the law is exploding right now. And here's my practical advice, okay? If your employer has a written drug policy, read it carefully, okay? Actually read it because a lot of employees are relying on TikTok legal advice instead of their own handbook, and that is a dangerous game. Okay, so here's the next question. I have a medical marijuana card. Does that protect me at work? This is probably the biggest misconception I see all the time. People think if they have a medical marijuana card, they can't be fired for using marijuana, and that's not automatically true. Here's why. Your medical condition itself may absolutely be protected. So, like if you have PTSD or anxiety, chronic pain, migraines, epilepsy, cancer, or another qualifying condition that may qualify as a disability under California law, that in and of itself could be protected. So your employer may have to accommodate and engage in the interactive process, provide medical leave or disability protections, but there's a difference between your condition is protected and your employer has to allow marijuana use for that condition. And that distinction matters, okay? Federally, marijuana is still illegal. So even though California has moved way further than most states in protecting off-duty cannabis use, there are still unresolved legal questions, especially in safety-sensitive jobs. So if someone is terminated after testing positive and they have a medical marijuana card, I would never tell them you definitely have no case. But I also never tell them this card automatically protects you. You have to really look at the facts. The facts matter, the industry matters, and the employer's policies matter. Also, whether or not there was actual on-the-job impairment matters a lot. So one question I think people need to ask more is does the industry that I'm in matter? And yes, massively. And honestly, your industry may matter even more than the state you're in, because some industries are heavily controlled by federal law. And federally, remember, marijuana is still treated very differently than California. So if you work in transportation, aviation, law enforcement, defense contracting jobs, jobs involving federal grants, healthcare roles, or positions involving heavy machinery, your protections are probably significantly weaker. And courts usually give employers much more flexibility in safety-sensitive environments. This is because employers are going to argue public safety. And honestly, juries tend to understand that argument. If someone's operating a crane or medical equipment or carrying a firearm, courts are less likely to view marijuana protections broadly. So, one of the worst assumptions employees can make is my friend works in techs and smokes all the time, so I'm fine too, right? Your job may be governed by completely different rules. Now we're going to look at a question on the other side of being hired. Can employers ask me about weed during a job interview? So in California, generally, no. California passed another law, it's called SB700, which limits employers from asking applicants about prior cannabis use in many situations. So for many private sector jobs in California, employers are not supposed to ask, do you smoke weed or have you used marijuana recently? But again, like everything, there are exceptions to the rule, especially federally regulated jobs. But California is clearly moving towards treating lawful off-duty marijuana use more similarly to alcohol. This means that what you legally do outside of work is increasingly viewed as your own personal business, at least for many employees. Now, whether employers always follow that law perfectly, that's a whole different conversation. But legally, California is becoming increasingly employee protective in this area of the law. Okay, so this next question makes me laugh a little. Can I smoke during my lunch break? I'm just gonna save everyone some trouble here. Please don't do it. Seriously, don't do it. California's protections focus on lawful off-duty use. Yes, when you're at lunch or off-duty, but a lunch break is not really the clean off-duty situation people think it is. If you use marijuana during lunch and return to work impaired, which you probably will, your employer can absolutely discipline you. And practically speaking, observable impairment is very difficult to defend. Think about it this way: you wouldn't drink cocktails at lunch and expect no workplace consequences, right? Same principle. And from a litigation perspective, once impairment enters the conversation, the case becomes much harder. So, even though employees hear California protects weed use now, what they need to understand is California does not in any way protect being impaired at work. These are completely different things. Now, what if your coworker seems high at work? This comes up so much more than people realize. And the answer is different depending on whether you're an employee or an employer. See, if you're just an employee and you genuinely believe someone is impaired in a way that creates a safety issue, you really should report it. Go to HR, go to a supervisor. You do not need to diagnose them, and please don't investigate it. Okay, and you definitely should not start gossiping about it. Okay, now for California employers, California law is increasingly pushing employers towards focusing on actual impairment rather than just historical marijuana use. So employers increasingly need to actually see observable behavior or safety concerns, performance problems that you think may be caused by impairment or actual visible signs of impairment. You can't just say, well, the drug test is positive because it doesn't really mean anything. It could have been use from weeks ago. And if your workplace has no written impairment policy right now, well, that's a lawsuit waiting to happen. Get one in place. Moving on, this is one of the most under-discussed issues. What happens if I get hurt at work and test positive? Because a positive marijuana test can complicate a worker's compensation case very quickly, even if you weren't actually impaired. Why? Because employers may argue intoxication contributed to the injury. Now courts are becoming more skeptical about relying only on THC metabolites because, again, those metabolites don't necessarily prove that you're currently impaired. But once a positive marijuana test enters a workers' comp case, things get super complicated. The case becomes more adversarial, there are more defenses, and suddenly the employee is forced into a much more difficult position. So if you work a physically demanding or safety-sensitive job, this is something people really need to think about because even if marijuana wasn't actually the cause of an injury, a positive test can still create major legal headaches. So the last question is where is the law heading? And we don't really know, but from what it looks like, it's heading towards way more employee protections, but very slowly. One of the biggest developments right now is moving marijuana from Schedule 1 to Schedule III. This is super significant. It signals growing federal recognition that marijuana has accepted medical use. Now, does that instantly change workplace law? No. But it absolutely signals where things are heading. More states are adopting off-duty protections, more employers are revising policies, and courts are increasingly focused on actual impairment rather than simply punishing historical youth. But we're still in this weird legal transition period where state law says one thing and federal says another, and science is evolving, and employers are trying to figure out what policies are legally defensible. This means this area of the law is going to continue changing quickly. Marijuana is illegal federally, but legal for recreational uses in at least 24 states and for medical use in 40 states. This creates a super complicated landscape for navigating the legality around marijuana use, especially in the workplace. But hopefully, this episode helped you understand your rights at work just a little bit better. And if you have any questions, don't hesitate to reach out to the show in the comments via direct message or shoot us an email at podcast at antonianmiranda.com. This is Punching the Clock for the AM Sidebar Podcast. Follow and subscribe for more about your rights as an employee.