Use cannabis when you’re not at work? You can still be fired

employment discrimination

GreenState Ombudsman Ngaio Bealum. Photo: Russel Yip

An ombudsman is defined as “a person who investigates and attempts to resolve complaints and problems.” Our Ombudsman is GreenState’s advice and etiquette column. It’s written by Ngaio Bealum, who edited the West Coast Cannabis newspaper. Bealum is a Sacramento-area father, comedian, go-to host for cannabis events and world traveler, all of which make him a keen observer of human behavior and a reliable ambassador for marijuana. In this installment, Bealum tackles the issue of medical cannabis in the workplace. 

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I am a mostly medical cannabis user. I don’t get high at work, but they just started companywide drug testing and I am freaking out. Is there anything I can do?

I regret to inform you that there isn’t much you can do. I mean, you could quit using cannabis, but that’s about it. 

California is an “at will” state, meaning employers can fire you for just about any nondiscriminatory reason. Cannabis users are not a protected class, and while Proposition 215 created a medical cannabis defense in criminal court, it does not prohibit employers from firing people for drug use. And before you ask: Yes, the matter has already been settled by the California Supreme Court under Ross vs. Ragingwire Telecommunications Inc. in 2008.

I know what you are thinking: “But if I am not high at work, why should it matter?” 

Partly, it’s an insurance issue. Many businesses get better rates on their liability insurance if they have a “drug-free workplace.” Unfortunately for you, THC byproducts can be detected in your body weeks after the drug is no longer present. Alcohol disappears just about as soon as you sober up, and cocaine can’t be detected after about a week, but chronic (sorry) smokers may fail a urine screening for “THC-COOH” up to six weeks after using. So if there is an accident or you get hurt on the job, you can be drug-tested, and the results of that test can be used to deny you worker’s compensation benefits, even if you were stone-cold sober when the accident occurred. 

The solution? You can get involved in the discussion. Twelve states have laws on the books banning employment discrimination against lawful medical cannabis users. Maine’s law even protects recreational users. Wicked. Here in California, Assemblyman Rob Bonta, D-Alameda, has introduced AB2069, offering protection to medical cannabis patients. Employers could keep discriminating under the new law if they might lose federal licensing or federal funds by having a cannabis patient on the payroll. If it’s important to you, then you should probably make your voice heard on this matter.

You could always find another job. According to a recent survey by marijuana breathalyzer startup Hound Labs, about half of the companies in California don’t test for cannabis. Before you apply for a new gig, check out their HR guidelines. If you can’t take your medication, don’t submit an application. 

As cannabis legalization spreads, employers are going to have to figure out a way to accommodate people that use cannabis in their off hours. As long as you aren’t high at work (and no one should be high at work; it’s rude and unprofessional), it shouldn’t matter to your employer what you do in your down time, as long as you aren’t breaking the law. And since cannabis is legal, you should be allowed to exist as a productive, law-abiding citizen.