Are There Legal Protections for Employees Who Use Medical Marijuana? By Gregory Thyberg on February 18, 2021

MarijuanaCalifornia was the first state to legalize medical marijuana and it is now one of the few that has legalized the use of recreational marijuana. With lifted restrictions, many employees are curious about how these laws may affect their employment status, or more specifically, are there legal protections for California employees who are medical marijuana patients?

California employment laws have yet to address this matter specifically. However, that doesn’t necessarily mean that an employee is without legal options if they are fired for the use of medical marijuana. Employment law attorney Gregroy Thyberg helps his Sacramento, CA, clients understand the employment laws that are in place and how they may provide a degree of protection for medical marijuana patients.

Can My Employer Check If I Have a Medical Marijuana Card?

Due to the Health Insurance Portability and Accountability Act (HIPAA), as well as California privacy laws, it is illegal for an employer to check if an employee carries a medical marijuana card. Employers have no access to the California ID system which contains patient information pertaining to medical marijuana cards.

Recently passed marijuana laws provide further protections by preventing employers from checking if employees have visited a marijuana dispensary. These laws make it illegal for a marijuan dispensary to sell a customer’s personal information to a third-party, such as a Sacramento-based employer. This is the only way that type of information would be accessible to an employer.

Can My Employer Drug Test Me?

Although an employer cannot check if an employee carries a medical marijuana card, they are allowed to require employees to undergo drug testing as a condition of employment. An important condition to this law is that an employer cannot specifically target a single person based on race, nationality, disability, or other discriminatory reasons. If one applicant is being drug tested, then all other applicants for that position must be tested as well.

Drug testing for active employees in California is also subject to safety matters, or the necessity of the test. For instance, if an employee’s job duties do not impact public safety, then random drug testing is not usually considered legal. If a drug test is brought into question, a judge weighs the employer’s reason for requiring the drug test against the employee’s right to privacy. This “balance test” will determine if the drug test was considered legal.

Can I Be Fired For a Positive Drug Test if I Have a Medical Marijuana Card?

If a job applicant or employee fails an employer’s drug test, they can be fired or denied employment, even if they present a medical marijuana card. This is because California law grants employers the right to maintain a drug-free workplace.

What Should I Do If I’m Fired?

Even though an employer has the right to maintain a drug-free workplace, employees are still entitled certain protections. If someone is fired for failing a drug test and they believe they have faced discrimination or that their right to privacy has been violated, they should contact a knowledgeable employment law attorney. Gregory Thyberg can help those in the Sacramento area determine if they have grounds for a legal claim.

Contact Our Law Firm

If you have further questions about medical marijuana use and your legal protections as an employee, employment law attorney Gregory Thyberg would be happy to assist you. To get in touch with our legal team, send us a message online or call us at (916) 204-9173.

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Thyberg Law

Since 1981, Gregory A. Thyberg has been providing legal services to clients throughout Sacramento. With a focus on employment law, he can help you find a solution when facing discrimination, harassment, or other workplace injustices. Mr. Thyberg is affiliated with organizations like the:

  • California Bar Association
  • San Francisco Trial Lawyer’s Association

If you're experiencing unlawful discrimination in the workplace, request a consultation with Mr. Thyberg or call (916) 204-9173.

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