Employment and state laws intersecting has become a normalizing approach on how to improve workplace conditions. From giving paid sick leaves to restrictions on what can be asked during the hiring process, federal intervention has also become a key player on making these changes nationwide.  

According to a Reuters article, “It means that legal compliance is not just ensuring adherence to federal law anymore; indeed, that is now the mere compliance floor. Rather, it means that businesses need to understand, assess, and develop a plan for compliance with the employment laws in all of the states, cities, and counties in which they operate. This is often further complicated by the fact that laws that purport to cover the same issue often have differing requirements across state lines (and sometimes, as is the case with New York State and City for instance, even within the same state).”

Putting marijuana into the conversation with state/federal laws and employment policies, it has been prohibited at the federal level since the early 1930's. Legislation that has been put into action to make marijuana illegal federally include 1937 Marijuana Tax Act, the 1952 Boggs Act, and the Anti-Drug Abuse Act of 1986.

More background provided by Reuters:

“The current federal legislation controlling marijuana possession, use, and distribution is the Controlled Substances Act, which was published in 1971 and classifies marijuana as a Schedule I drug. This category is for drugs that, according to the Drug Enforcement Administration, have "no currently accepted medical use and a high potential for abuse" and create a risk of "severe psychological and/or physical dependence."”

“Despite the long history of marijuana prohibition at the federal level, over the last several decades, state legislatures have attempted to reverse the federal trend of marijuana prohibition. By the 1990s, various states began to legalize medical marijuana — but restricted access to individuals who satisfied certain criteria — including California, which in 1996 became the first state to permit medicinal marijuana use.”

Legalizing marijuana state by state is not coming as a shocker to the American public, a popularized drug that is used both medicinally and recreationally. However, is testing employees for marijuana at the workplace a civil legality? Where does it land on state law and federal? This permission is one that has been in question since its action became in passing since 1996.

In the ruling of Ross v. Ragingwire Telecommunications, Inc., it was ruled by the state Supreme Court that marijuana use is not necessary to accommodate for regardless of it being for medicinal use due to it being prohibited under federal law. It is also due to legislation ever requiring employers to permit drug usage in the work environment. Ross is still existing precedent to this day.

In the last few years, however, California lawmakers have attempted, on several separate occasions, to enact legislation that would prohibit adverse employment actions on the basis of marijuana use, according to Reuters. AB 2069 introduced back in 2019 which would disallow employers to terminate or not hire employees who use marijuana and possess a valid state identification card as a medical marijuana patient. It had failed at the stage with the Assembly Appropriations Committee, along with a similar pathway for AB 882 that took away some protections from California employees.

In 2021, more legislation was brought again that would guarantee employment protections for each individual that was using marijuana. AB 1256 would prohibit employers from “discriminating against a person in hiring, termination, or any condition of employment due to the fact that a drug test has found that person to have marijuana in their urine,” said Reuters.

AB 1256, which would add Section 52.8 to the California Civil Code, specifies that a person who suffers discrimination in violation of this law may institute and prosecute a civil action for damages, injunctive relief, attorney fees and costs.

However, employers can still conduct drug tests for tetrahydrocannabinol (THC),  the principal psychoactive constituent of marijuana, for these reasons:

(1) the employer is required to conduct that test by federal law or regulations;

(2) the employer would lose a monetary or licensing-related benefit for failing to do so; or

(3) the employment is in the building and construction trades.

AB 1256 did not get adopted and was amended meaning employment protections were stripped away without appeal of the bill. This bill only provides now disallowing an employer from discriminating against a person on the basis of a positive drug screening test for non-psychoactive cannabis metabolites.

There is still the strong lead that marijuana will not be legalized under federal law without a transgressional wave of politicians, court justices, and of course the American population to demand the change. Protections for employees should still be implemented that relate to marijuana usage, and this structure can impact how the federal government views marijuana as a whole. This means for us in California, employers should be engaged in what is going on in state legislation as more protections are being fought for.