No Broad Laws
*In these states, marijuana is either totally illegal, or there may be laws decriminalizing possession, or use of marijuana, or, the state may have a CBD law legalizing THC at a level constituting marijuana-derived CBD.
Employers have so many questions! Learn More About Workplace Considerations for Marijuana Use.
What are the impacting issues of marijuana use? Review Our Checklist of Impacting Issues to Research.
Employer Concerns – Significant to Review
- It was found in a case decision, that the employer may terminate employees who test positive for marijuana even if use was off-duty and for a medical condition with a valid medical marijuana card.
- Regarding obligations and rights related to drug testing in California (CA), give high attention to CA case decisions as well as variances within municipalities (e.g., San Francisco).
- (California Rec. 11362.45) This cited section does not change these employer rights and obligations, “… of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of cannabis in the workplace, or affect the ability of employers to have policies prohibiting the use of cannabis by employees and prospective employees, or prevent employers from complying with state or federal law.”
(California Rec. 11362.785) “Nothing in this article shall require any accommodation of medicinal use of cannabis on the property or premises of a place of employment or during the hours of employment …
- Although there is no specific drug testing law for private employers in California, in general because of case related policies and programs.
- California has a state constitution that includes a right to privacy which has implications to an employer’s drug testing operations.
- (California Rec. 11362.45) This section does not affect, “… the ability of employers to have policies prohibiting the use of cannabis by employees and prospective employees or prevent employers from complying with state or federal law.”
- Employers may terminate employees who test positive for marijuana even if use was off-duty and for a medical condition with a valid medical marijuana card.
- See Significant above.
- Smoking is permitted for ingestion.
- See Significant above.
Other Impacting Laws (e.g., drug testing, workers’ compensation, unemployment)
- An employee is disqualified from unemployment benefits if s/he was discharged for, ( Unemp. Ins. Code sec. 1256.4) “…chronic absenteeism due to intoxication or reporting to work while intoxicated or using intoxicants on the job, or gross neglect of duty while intoxicated, when any of these incidents is caused by an irresistible compulsion to use or consume intoxicants, including alcoholic beverages…” or, otherwise left employment for, “…reasons caused by an irresistible compulsion to use or consume intoxicants, including alcoholic beverages.”
- An injury is not qualified for workers’ compensation benefits when the injury is caused by intoxication, by alcohol or the unlawful use of a controlled substance (with the same meaning as prescribed inSection 11007 of the Health and Safety Code), by the injured employee.
- (California Rec. 11362.785) “This article does not require a governmental, private, or any other health insurance provider or health care service plan to be liable for a claim for reimbursement for the medicinal use of cannabis.”
- Apply the Checklist of Impacting Issues for Employee Use of Marijuana provided by NDS for additional state laws and issues that can relate to and/or impact your operations regarding employee use of marijuana.
There is no specific drug testing law for private employers in California. There is a plethora of case law that will impact an employer’s drug-free workplace operations. Before implementing drug testing-related policies and programs, seek assistance from an experienced, state-specific attorney
Sources (e.g., Bill Number, Authority)
- California Compassionate Care Act 11357-11362.9 – Compassionate Care Act, Cannabis
- Health and Safety Code 11362.1 et al – Recreational use
- California Health & Safety Code § 11362.765 to 785 – Medical marijuana
- California Unemployment Insurance Code Sec. 1256.4 – Unemployment related
- California Labor Code 3600(a)(4) – Workers’ compensation related
- Section 11007 of the Health and Safety Code – Controlled substance definition
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DISCLAIMER: This resource is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.
CAUTION: Where there are quotation marks, the language is directly from published law. This information is only a summary of some issues and it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g. workers compensation, unemployment law).