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Marijuana use in the workplace

California's 40 million residents can legally engage in the recreational use of marijuana after January 1. While one legal obstacle to its use was removed, there may be civil litigation stemming from the workplace use of marijuana.

Every state permits employers to terminate a worker who uses marijuana at work. The California state Supreme Court ruled in 2008 that an employer does not have to accommodate an employee's use of marijuana for medical purposes. The Court noted back then what is still true today. The federal government still classifies marijuana as a Class I drug, which is illegal for any reason.

Attorney General Jeff Sessions recently reemphasized this position and withdrew the federal government's hands-off position on prosecution. A Chief Operating Officer for a marijuana dispensary stated that employers still have the right to conduct drug tests and mandate a drug-free work place.

There are safety issues concerning the use of marijuana at the workplace. The U.S, Bureau of Labor Statistics reported that 5,190 workers were killed on the job in 2016, which was the highest number of fatalities since 2008. Any impairment can be particularly damaging in professions and occupations such as doctors and construction workers.

However, as with alcohol, a habitual marijuana user may function better at work than an infrequent user. Many California employers are just going to have to decide whether a worker should be fired if the worker appears impaired.

Insurers have the dual problem of paying higher workers' compensation claims for injuries. However, they also must pay legal lawsuits concerning employees claiming that they were wrongly dismissed.

Additionally, new grounds for wrongful termination lawsuits are on the horizon. Federal law does not require an employee to reveal whether they have a condition that is treatable by marijuana, such as cancer or glaucoma. If an employee has a prescription for marijuana for these conditions, the employee can claim that their employer did not make a reasonable accommodation.

This issue is going to grow more complicated as more workers may use marijuana for recreational and medical purposes, and it can be conveniently ingested at work in the form of a pill, candy and food. An attorney can help advise employees on their rights and the rapidly-developing law on this issue.

Source: CBS MoneyWatch, "Working while stoned: How will companies cope?" Ed Leefeldt, Jan. 4, 2018

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