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The use of marijuana remains illegal under the federal Controlled Substances Act, however California has implemented legislation that permits individuals to possess and consume marijuana in the state. Below is a comprehensive overview of California’s recreational and medical marijuana laws, and how they affect employers.

Overview

In 1996, California became the first state to legalize medical marijuana under Proposition 215, now known as the California Compassionate Use Act of 1996. This act protects against criminal prosecution for certain medical uses of marijuana. In 2016, use of recreational marijuana was legalized under Proposition 64, now known as the California Control, Regulate and Tax Use of Marijuana Act. This law states that individuals that are 21 years or older may possess, cultivate, and use limited amounts of marijuana in California.

Impact on Employers from California’s Legalized Marijuana Laws

Under California’s current legalized marijuana laws in 2023, employers are permitted to:
  • Perform drug testing (without specified limitations).
  • Take adverse employment actions against an individual based on their positive test for marijuana, even if the individual is authorized to use marijuana for medical purposes.

In the 2008 case, Ross v. Raging Wire Telecommunications, the California Supreme Court ruled that an employee who was authorized to use marijuana for medical purposes did not have the right to sue his employer for terminating his employment based on his off-duty medical marijuana use. Although the employee brought forward a disability discrimination claim under the California’s Fair Employment and Housing Act, the court ruled that the act does not require employers to accommodate an employee’s use of drugs that are illegal under federal law.

However, as of January 1, 2024, job applicants and employees who use marijuana outside of work will be protected from discrimination in the workplace under an amendment (AB 2188) to the California Fair Employment and Housing Act (FEHA). Under AB 2188, employers with five or more employees are prohibited from discriminating against or otherwise penalizing an applicant or employee based on the individual’s:
  • Use of marijuana off the job and away from the workplace; or
  • Positive tests for marijuana that do not measure impairment
These new prohibitions added by AB 2188 do not apply to:
  • Employees in the building and construction trades;
  • Individuals applying for or working in positions that are subject to federal background investigation, clearance requirements, or state or federal laws that require drug testing as a condition of employment of federal funding, licensing-related benefits or contracts; or
  • Individuals who possess, use or are impaired by marijuana at work.

AB 2188 allows individuals to recover damages and penalties from employers that engage in unlawful discrimination.

Recreational Marijuana

Below is a table that provides information about what the California Control, Regulate and Tax Adult Use of Marijuana Act (CAUMA) allows:

Individuals age 21 and older may:

Possess, process, transport, purchase, obtain, or give away to others who are 21 or older without any compensation whatsoever:
  • 28.5 grams of marijuana
  • Eight grams of marijuana concentrate; and
  • Marijuana accessories
Possess, plant, cultivate, harvest, dry, or process (and possess cannabis produced by):
  • Six living marijuana plants
Smoke or ingest:
  • Marijuana and marijuana products

CAUMA Impact on Employers

The CAUMA specifies that it does not:
  • Affect employers’ rights to maintain drug and alcohol-free workplaces or to have policies that prohibit employees and applicants from using marijuana;
  • Require employers to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growth of marijuana in the workplace; or
  • Prevent employers from complying with state or federal law.

Other Restrictions On Recreational Use

Below is a table that summarizes restrictions on legalized recreational marijuana use by the CAUMA:

Individuals may NOT:

Use marijuana:
  • In any public place;
  • While driving, operating or riding as a passenger in any vehicle used for transportation; or
  • In or on the grounds of a school, day care center, or youth center while children are present.
Possess marijuana:
  • In unsealed containers or packages while driving, opening or riding as a passenger in any vehicle used for transportation; or
  • In or on the grounds of a school, day care center or youth center while children are present.
Smoke or vaporize marijuana:
  • In any location where smoking tobacco is prohibited; or
  • Within 1,000 feet of a school, day care center or youth center while children are present (subject to limited exceptions)
The CAUMA also allows California cities and counties to restrict where or when recreational marijuana may be used locally. However, these regulations may not completely prohibit recreational marijuana use in either of the following:
  • A private residence (such as a house, an apartment unit, a mobile home or other similar dwelling); or
  • Any fully enclosed and secure accessory structure to a private residence (such as a garage or enclosed porch).

However, local regulations can completely prohibit recreational marijuana use virtually anywhere else within a particular city or county. Private entities can also prohibit or restrict marijuana possession or use on their privately owned property.

Medical Marijuana

Qualifying patients (QPs) and their primary caregivers are permitted to possess and grow more marijuana under the California Compassionate Use Act (CCUA) than is generally permitted for people age 21 and older. Below is a table that provides more information about what the CAUMA allows:

For each QP, the QP and his or her primary caregiver may:

Possess:
  • Up to eight ounces of dried marijuana; or
  • Any amount of marijuana consistent with the QP’s needs, if the QP’s physician recommends that eight ounces does not meet those needs.
Maintain:
  • Up to six mature or 12 immature marijuana plants.
In California, an individual does not need to register with any government agency in order to be classified as a qualified patient (QP). A patient could qualify as a QP if their physician determines that marijuana use would improve their health and permits the patient to use marijuana to treat any of the following conditions:
  • Cancer
  • Anorexia
  • AIDS
  • Chronic pain
  • Spasticity
  • Glaucoma
  • Arthritis
  • Migraine
  • Any other illness for which marijuana provides relief
Under the law, the recommendation or approval by a physician may be written or oral. The CCUA defines “primary caregiver” as an individual who:
  • Is designated by a QP; and
  • Has consistently assumed responsibility for the housing, health or safety of the QP.
However, a primary caregiver must be at least 18 years old unless he or she is:
  • The parent of a minor child who is a QP; or
  • Otherwise entitled to make medical decisions for a QP.

The CCUA has a voluntary program that mandates county health departments to issue identification cards to QPs and primary caregivers who apply for them, even though there is no legal requirement for them to register with the state. The primary benefit of obtaining an identity card through this program is that, unless the official has reasonable suspicion that the card is being used fraudulently, a state or local law enforcement official must accept a valid card as evidence that the holder is entitled to CCUA’s protections against prosecution.

CCUA Impact on Employers

The CCUA does not require employers to accommodate medical marijuana use “on the property or premises of a place of employment or during the hours of employment” or an employee’s off-duty medical marijuana use. The CCUA also does not prohibit employers from taking adverse employment actions against employees based exclusively on the fact that the employees violate a workplace drug policy by testing positive for marijuana. The CCUA also clarifies that medical marijuana does not have to be covered under any health care plan.

It is important to note that employers in certain cities in California, such as San Francisco, may be prohibited from conducting any random employee drug tests.

Other Restrictions on Medical Use

The CCUA specifies that it does not authorize any QP to smoke medicinal marijuana under any of the following circumstances:
  • In a place where smoking is prohibited by law
  • In or within 1,000 feet of the grounds of a school, recreation center, or youth center (unless the medicinal use occurs within a residence)
  • On a school bus
  • While in a motor vehicle that is being operated
  • While operating a boat

More Information

For more information on marijuana laws in California, contact DMJ Insurance Services, Inc.