Labor Law Office, APC

Weed may be legal in California – but it can still get you fired

Nearly eight million Californians who cast ballots in the November election voted “yes” to a bill legalizing marijuana in the state. Proposition 64 made it legal for individuals to use and grow marijuana for personal use on Nov. 9; The sale and subsequent taxation of recreational marijuana goes into effect Jan. 1.

But according to the San Jose Mercury News, Prop. 64 also states that employers are still free test workers for marijuana use before hiring them and at any point during their careers. Under the law, companies can let go someone who tests positive, even if they aren’t high on the job. Even people who are use medical marijuana under a doctor’s care aren’t protected from being tested and terminated.

Prop. 64 may have granted freedoms to pot users, but parts of the new law begs the question: How can you get canned for doing something that is legal, especially if it’s outside the office?

Adam Winkler, a professor of constitutional law at UCLA, told the Mercury News: “People think that they have all of these job protections, but they really don’t.”

Federal law prohibits discrimination in the workforce based on race, age, religion, gender and disabilities. In California, sexual orientation, military status or health conditions also are protected under state law.

 Marijuana users are not protected by either federal or state mandate. And, it doesn’t matter if people are using weed only when they aren’t working. Marijuana is stored in fat cells, and can remains in the body for weeks.

According to the Mercury News story, bosses can choose not to hire people who smoke cigarettes or who are alcoholics. Employment in the U.S. is at will, which means that bosses can hire and fire whoever they want, except in cases of discrimination against a protected class.

For a while at least, every business in California is likely looking at whether to continue their current drug-testing policies or update them to allow for Prop. 64. In the meantime, marijuana users who fear being subjected to a drug test and fired should either hold off from using for a while, or look for work elsewhere, some say.

If you feel you are being discriminated against, it is important to discuss your concerns with an experienced wrongful termination attorney in Sacramento as soon as possible.

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Labor Law Office, APC

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