Employers are often in a bad position – they are legally required under federal and state laws to accommodate employees with disabilities or health problems. If medical marijuana is legal in the state, as it is in California, the employee may legally be able to use marijuana to treat his or her health condition. However, the employer may not like the idea of allowing an employee to get high while at work.

Under California law, employers do not have to tolerate marijuana use. Employers can discipline or fire employees for using marijuana, even if the marijuana is being used to treat a disability under California’s medical marijuana law. California’s medical marijuana law, called the Compassionate Use Act, merely provides that people who use marijuana for medical purposes under the care of a doctor will not be criminally prosecuted. Since that law was passed, the California Supreme Court has ruled that the Compassionate Use Act does not apply to employment. An employer in California can require drug tests before hiring someone, and can refuse to hire someone who is using marijuana, even if it is being used for medical purposes.

While the law may seem to be clear – that employers in California cannot discriminate against an employee or a potential employee on the basis of a medical condition, but can fire or refuse to hire an employee for using marijuana – it is unclear whether or not an employer in California can refuse to hire a person because he or she has a medical condition that they are using marijuana to treat.

An employer must make reasonable accommodations to employees or potential employees who have disabilities, unless they would pose an undue hardship. Whether or not an accommodation is an undue hardship depends on the size of the employer and the cost of the accommodation, as well as other factors. For example, it probably would not be an undue hardship for a large software company to allow a software engineer to leave work 30 minutes early on certain days in order to see a medical specialist. However, it may be an undue hardship to force a small company to install an elevator in their building in order for an employee to be able to make it to the third floor in order to work.

Employers have a few legal options they can take with respect to medical marijuana use and reasonable accommodations. They could allow employees to use marijuana at work, but almost none do, because of productivity issues. An employer could also choose to send an employee home that was having medical issues and needed medical marijuana.

Unfortunately, many employers choose to handle their employees’ medical conditions improperly. One such employer that has been accused of wrongful termination with regards to medical marijuana is Kohl’s. A former employee from California is suing the retailer, claiming that he was fired after testing positive for trace amounts of medical marijuana that he had used while off duty. He used the marijuana for anxiety and had a legal prescription.

If you have a legal prescription for medical marijuana and you can use it to treat your medical condition without affecting your job performance, you should not face any disciplinary action. If you do, you may have a legal case to pursue. At Liberty Law, Micha Star Liberty believes that employers must not discriminate against employees or potential employees based on their medical conditions. If you have been discriminated against at work because of medical marijuana use, call Micha Star Liberty, Oakland employment attorney, at 510-645-1000 or 415-896-1000. You may be entitled to get your job back, receive back pay and back benefits, or more. Call to learn more.



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