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Employer drug policy after recreational marijuana legalization

On January 1, California Proposition 64 became law, legalizing recreational marijuana sales to adults age 21 or older. Legalization has dominated state and local news, as sellers and cultivators learn how to comply with the law. Marijuana legalization also affects California employers, most particularly with respect to policies regarding employee marijuana use.

An employer may be concerned about employees coming to work high or using marijuana at work. In the context of medical use, already legal in California for more than a decade, the California Supreme Court said that employers may still require drug-free workplaces and may test employees for marijuana use.

The Court has also held that employers may fire, or refuse to hire, people who fail drug tests, even those with sympathetic medical conditions for which marijuana has been prescribed. In essence, an employer is not required to accommodate medicinal marijuana use despite state law, in part because marijuana is still illegal under federal law.

Presumably, this will not change with the legalization of recreational marijuana. It is arguably even less compelling to require an employer to accommodate recreational use, when medicinal use did not need to be accommodated.

This is a complex area that can involve state, federal, and even local laws. A California employer needing legal guidance should consult an experienced employment law attorney for assistance in navigating the new law. Employer policies, practices, and handbooks will need to be carefully written, for example. In addition, some types of employers will have particular obligations with respect to regulating marijuana use, including certain employers with government contracts and some employers in the transportation business.

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