In November, California voters followed a few other states and approved Proposition 64. This proposition means that Californians can consume marijuana on private property, carry up to an ounce and have up to six plants growing in their home.  It also means that marijuana can still get you fired. How can this be?

While marijuana has been legalized in California, employer policy trumps the new proposition, allowing companies to still test workers for marijuana use before hiring them or during random drug tests. If a worker tests positive, they can legally be let go.

In some ways, it’s a Catch 22 situation for employers. For employers that continue to enforce strict drug policies in their work places, they could potentially begin to limit their employee pool. For companies that relax the drug policy, they could face increased liability in the instance that someone comes to work stoned.

One of the key factors that people don’t consider is that employment in the United States is considered “at will.” While there are protected classes that employers have to take into consideration when making a hiring decision, such as gender, age, race, religion or disabilities, marijuana use is not one of those.

This issue falls into the same realm as drinking on the job. An employer will not tolerate employees drinking on the job or coming to work drunk. In the same vein, employers with strict drug policies will not want employees coming to work high from marijuana.

What happens now is that companies must decide on what they want to do going forward.  Since it is a new law, chances are most employers are still in the decision mode on what the right choice is. Some would say it depends on the industry, while others might say they should stand strong on their drug policies and enforce those policies that are currently in place. As this becomes something that is passed by more states, chances are there will be attempts to create federal laws that make it a form of discrimination to not hire, or fire, persons that test positive for cannabis. Until that time, however, employers must decide how to handle this issue, and how it affects their business by choosing one way or the other.


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