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Can I fire an employee who uses cannabis?

On Behalf of | Oct 13, 2022 | Employment Law |

Legal cannabis use may not be new for Californians, but it can still be a complicated issue for new employers. For instance, if you have a few employees or are ready to start hiring employees, you should know whether cannabis use off or on the job can affect the employment relationship.

Cannabis use off the job

On Jan. 1, 2024, a law will go into effect prohibiting California employers from discriminating against workers for using marijuana off the clock. This means that employers cannot deny someone a job or promotion just because they use marijuana.

That said, employers can still require pre-employment screenings and standard drug tests for specific occupations, like construction work.

As an employer, you can avoid legal complications or disputes with employees by refraining from making hiring decisions based solely on a person’s use of marijuana off the clock.

Cannabis use on the job

On the other hand, as an employer, you have the right to prohibit drug use during work hours and on work property. Creating a drug-free workplace can involve drafting a solid policy, providing training to management and offering tools and resources to employees who need help.

Further, you still have the right to admonish or otherwise penalize workers for poor performance or other lawful reasons. And if they are impaired on the job and get hurt in an accident, workers’ compensation benefits would not be available. 

Another challenge is testing for impairment by marijuana. Tests like urine or hair analyses can show the presence of cannabis metabolites in a person’s system, but it does not prove impairment at a specific time.

Some sources believe that shifting to saliva tests could be a way to determine if someone ingested marijuana within the last day versus the last week or month. And parties are working to develop tests to shrink that window to an hour, which could help employers more accurately determine if a person is impaired at the time of the test.

Explore your rights and options

Before making any determinations involving employees and marijuana use, you can consult an attorney for guidance. They can help ensure your decisions are lawful and do not infringe on workers’ rights so you can avoid the complications of a legal claim.