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MYTH: Your job is safe, even if you aren’t high at work

That California medical marijuana recommendation may entitle you to buy a sweet sack of Sour Diesel, but it does not entitle you to any workplace rights when it comes to using medical cannabis.

Your employer can still force you to take a drug test — and you still face termination for a positive test result.

Remember: Cannabis is not technically legal. Proposition 215 is an affirmative defense, not a right per se. State law recognizes patients’ rights to use medical cannabis, but allows employers full discretion on testing and terminating employees for using marijuana or even having it in their system.

“When California passed Prop. 215 in 1996, there were certain beliefs about who was a medical cannabis patient,” said Amanda Reiman, the Drug Policy Alliance’s marijuana law and policy manager. “In most cases it was assumed that patients were at end of life or had severe disabilities. Many people assumed that medical cannabis patients would be too ill to work.”

“This is not true,” she added. “Most medical cannabis patients do maintain employment, and many are using cannabis instead of more dangerous pharmaceutical drugs for the expressed purpose of being able to keep working. It seems like a no-brainer that these folks should be protected just as they are regarding pharmaceutical drug use.”

In fact, medical marijuana is the only legally-obtained drug that is not protected for a positive workplace drug test under the American with Disabilities Act. Oxycontin and Ritalin are protected if you have a prescription, but not cannabis.

The legal precedent in this case is Ross vs. RagingWire Telecommunications, a California Supreme Court decision from 2008.

Plaintiff Gary Ross was an Air Force veteran who suffered back spasms from prior military injuries. He was offered a job by the defendant, a telecommunications firm. He presented his medical recommendation card during his drug screening, and the company still hired him. They fired him when the positive test came back. Ross took his case to the California Supreme Court, and he lost.

“The Compassionate Use Act does not eliminate marijuana’s potential for abuse or the employer’s legitimate interest in whether an employee uses the drug,” Justice Kathryn Mickle Werdegar wrote at the time.

One case is fighting this. Former Kohl’s department store employee Justin Shepherd is litigating his termination in a suit currently filed in U.S. District Court in Fresno.

Shepherd had tested positive for cannabis used off-duty, four days before the test. The case is in process, with its decision likely to influence workplace rights for cannabis patients who medicate off-the-clock.

Most workplaces in California don’t go around performing random drug tests unless your duties involve public safety. So you’re probably cool, unless you’re screening for a new job — or if you give them reasonable suspicion.

If you smell like weed, seem high at work or if you’re injured on the job, drug testing can be implemented and you can be dismissed, even if your performance is solid and you are working sober.

Your California medical recommendation affords you no rights in the California workplace.

Photo by AP
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