Oct 21

Can Your Employer Can You for Cannabis in California?

Tags: , , , , , ,

Obama - Yes We CannabisCelebrities like Robert Downey, Jr., Drew Barrymore, and Charlie Sheen all got second chances after public bouts with drug and alcohol addiction. So should you. For that reason, California law prohibits many employers from refusing to hire an applicant for employment or discriminating against or firing an employee just because he’s a “former” drug addict or alcoholic. That’s because California law deems a past drug or alcohol addiction a disability. But just because you’re “baking bad” at work from eating too many “baked goods” doesn’t mean you have no rights. California law also prohibits many employers from discriminating against a “current” drug addict or alcoholic.

“High” Crimes: Job Discrimination Against Current Potheads

Bill Clinton - MarijuanaCalifornia’s Fair Employment & Housing Act (FEHA) prohibits an employer with at least five regular employees from refusing to hire a job applicant or discriminating against or firing an employee based on a disability. Similarly, FEHA prohibits a covered employer from asking general pre-offer questions that are likely to elicit information about a disability.1 Past drug addiction and alcoholism are disabilities.2 Thus, FEHA protects a former addict or alcoholic from adverse employment action or certain questions (e.g., whether he has ever used drugs, whether he has ever been hospitalized for an overdose, etc.).3

But don’t get too carried away just yet. There are 420 reasons why your career might go up in smoke. For example, an employer can require a job applicant to test for the “current” illegal use of drugs4 or even medical marijuana.5 The job applicant doesn’t have the right to just say no to the test and still get the job. Even if he passes the test with flying colors, the employer can prohibit him from being under the influence of alcohol or drugs at work (probably a good idea) and may require him to submit to a urinalysis if the employer reasonably believes the employee might be under the influence at work.6

Just how long ago drug or alcohol use must be before the law says it’s no longer “current” is unclear. The federal regulations implementing the Americans With Disabilities Act (ADA) are the only authority on point. The ADA regulations define the “current illegal use of drugs” as the “illegal use of drugs that occurred recently enough to justify a reasonable belief that a person’s drug use is current or that continuing use is a real and ongoing problem.”7 That definition isn’t helpful. In short, nobody knows for sure whether FEHA protects a job applicant or employee from adverse action for using drugs or alcohol a month ago, six months ago, or even a year ago.

Still Living in the Stoned Age? Take Time off for Drug Rehab.

Arnold - I'll Be BakedEven if an employee who smoked a joint a year ago is a “current” drug user, California law still protects his job – to a point. Under Labor Code section 1025, an employer who regularly employs at least 25 employees to reasonably accommodate an employee who wishes to enter and participate in an alcohol or drug rehabilitation program.8 The employer can reasonably accommodate the employee by modifying his work schedule so he can leave work early to attend AA or NA meetings or even by allowing him to take a leave of absence so he can check into one of those chichi in-patient programs you see on commercials.

Conversely, an employer can deny an employee’s request to take time off to attend rehab only if the employee’s absence from work would impose an “undue hardship” on the employer. The question of whether an accommodation is an undue hardship is highly fact-specific and depends on a number of factors, including the nature and cost of the accommodation, the employer’s financial resources, and the number of persons he employs at the work site. Thus, whether allowing an employee to miss work to attend counseling or go on a leave of absence to participate in an in-patient rehab program would impose an undue hardship on an employer will vary from case to case.

That said, nothing stops an employer from refusing to hire an applicant or from firing an employee whose “current” use of drugs or alcohol renders him (1) unable to perform his duties or (2) unable to perform his duties in a way that wouldn’t endanger his or other peoples’ health or safety – a bit of a catch-22, as an employee presumably wouldn’t go to rehab unless his drug or alcohol use was making his life unmanageable.9 Moreover, drugs don’t have to be illegal or capable of leaving him in a catatonic state. Thus, an employer can fire a construction worker who ingests prescription pain-killers while operating a crane if they leave him unable to perform his duties safely.

Employees who suffer discrimination for requesting a reasonable accommodation to attend drug or alcohol rehab might be entitled to “high” compensation. Labor Code section 98.6(a) prohibits an employer from firing or in any manner discriminating, retaliating, or otherwise taking any “adverse action” against an employee for exercising “any rights” that the Labor Code affords him – including the right to request a reasonable accommodation to attend rehab.10 For a violation of Labor Code section 1025, an employee can seek reinstatement, reimbursement for lost wages and work benefits,11 and a civil penalty of 25% of up to $10,000.12

  1. 2 CCR §11070(b)(2). 

  2. 2 CCR §11071(d)(2)(B). 

  3. Id

  4. Id

  5. Ross v. Ragingwire Telecomm., Inc., 42 Cal.App.4th 920 (2008). 

  6. 2 CCR §11071(d)(2). 

  7. 28 CFR §35.104. 

  8. Lab. Code §1025. 

  9. Lab. Code §1025. 

  10. Lab. Code §1028. 

  11. Lab. Code §98.6(b)(1). 

  12. Lab. Code §§98.6(b)(3), 2988 et seq. 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.