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ARCHIVE Published on: 2013-06-24
Unfortunately, employers can legally refuse to hire you if you use medical marijuana, even if you are a legal patient. Read our write-up on Ross v. Raging Wire for details. An employment rights bill for patients passed the CA legislature in 2008, but was vetoed by Governor Schwarzenegger. If you are currently employed, you do have limited protections against termination.
If you have an upcoming drug test, you have a few options. You can try to pass the test by ceasing medical marijuana use and/or cleansing your system. See CA NORML's Testing Tips and Drug test Detection pages for more complete information.
Alternatively, you can negotiate with the employer. Explain your status as a medical marijuana patient, present your recommendation, and explain how your off-hours use of medical marijuana does not and will not negatively affect your job performance. If applying for the job, you can also personalize and present this Pre-employment Negotiation Letter (.doc). If already employed, use this Negotiation Letter for Currently Employed Patients (.doc). This strategy also applies if you have failed a previous drug test or if the employer learns about your use of medical marijuana in some other manner.
If you are currently employed in a non-safety-sensitive position, and your employer has no probable cause to administer a drug test (such as your involvement in an accident or injury), and you have not previously agreed to drug testing as a condition of your employment, then you may refuse to take a drug test. In the 1990 case Semore v. Pool, the court ruled that employers cannot retaliate for refusal in such a situation.
If you are terminated for your use of medical marijuana, you can personalize this Termination Negotiation Letter (.doc) and use it as the basis for negotiating your re-hire. Also, apply for Unemployment Insurance benefits and continue to reapply even if you receive a notice of denial. Follow the instructions on the denial letter to appeal it, and then contact ASA's Legal Services Coordinator to discuss how to prepare for your Unemployment Insurance Appeal hearing. In the past, several patients have won these appeals.
Complaints and civil suits against the employer
If you are denied employment or terminated for being a medical marijuana patient, you can file a complaint with the Department of Fair Employment and Housing (DFEH). If you file a complaint, ask for a full investigation to create a more complete record and go through the full complaint process, which begins when you fill out the Pre-Complaint Questionnaire and then call DFEH to schedule your interview at 1-800-233-3212. Here is a flow chart that demonstrates how the complaint progresses.
Unfortunately, because of the current state of the law, it is unlikely your FEHA Complaint will have results. You may still be able to file a civil suit for discrimintation. Write up brief summary of your case and propose it to lawyers. Note the status of your DFEH claim based on disability, and also the possibility of causes of action based on breach of contract (the lease). You will have six (6) months to file suit based on disability discrimination after you receive your Right To Sue letter from the DFEH. NOTE: Your DFEH complaint must be filed within ONE YEAR from the last act of discrimination (the eviction) or you may lose your right to file a lawsuit under the FEHA.
You can look for information on California Employment Lawyers using http://www.Martindale.com or trying search terms on Google such as "civil rights", "employment", "disability" and "lawyer" and "Your Region". Additionally, here are some employment lawyers in the Bay Area:
"Safety-sensitive" positions and Class A trucking license
There are no legal protections for medical marijuana users in 'safety-sensitive' positions, or with a Class A trucking license. These are federally regulated or have special regulations under state law. If the employer can prove the job in question is 'safety-sensitive', your best bet is to negotiate for a different position that is not 'safety-sensitive'.
Employers more open to medical marijuana patients
We have heard anecdotally that many local public agencies (such as the City of San Francisco) do not engage in discrimination of patients, and that some do not require a pre-employment drug screening as a condition of employment, unless the patient is applying for a law enforcement-related position. Additionally, we have also heard that the University of California, while requiring pre-employment drug screening, specifically excludes marijuana from relevancy. Many "New Economy" companies also often have liberal drug testing policies. Please contact ASA's Legal Services Coordinator to report any positive treatment or corporate policy relating to medical marijuana so that we can add employers to our Hall of Fame.
Lanier v. City of Woodburn
On March 13, 2008, in Lanier v. City of Woodburn, the Ninth Circuit Court of Appeals struck down the policy of the City of Woodburn (OR) that required a pre-employment drug test for the non-safety-sensitive position as page (book fetcher) in the City Library. The Court held that the pre-employment drug testing was unconstitutional and violated the Fourth Amendment's protections against unlawful search and seizure because the City failed to demonstrate a special need to screen a prospective page for drugs. Since a drug test is a search, the same reasoning applies to a city's drug testing of applicants for everyday jobs with no connection to safety or security, and the city must present evidence as to why drug use in a particular job would be dangerous. However, this ruling only applies to government employers.
This case creates a tension between this federal case denying suspicionless drug testing, and the two California Supreme Court cases of Ross v. RagingWire and Loder v. City of Glendale, that support California employers' ability to do general pre-employment drug testing.
For more information on this case, see this San Francisco Chronicle article.