One of our employees told us he smokes marijuana about 2 hours before his shift, and that he feels no effects from it when he starts work. Can we reprimand or fire him?
Employers must be very careful about disciplining employees who use cannabis products when not at work. As of January 1, 2024, with limited exceptions, California law protects employees who use cannabis off duty and away from the workplace. (Government Code Section 12954).
The California Civil Rights Department has issued an FAQ explaining the rights of employees and employers regarding off-duty use of marijuana. See Discrimination in Employment: Use of Cannabis.
Protected Conduct
Employees are legally protected in their use of cannabis when they are not working.
Because smoking marijuana when an employee is off duty and off premises is protected conduct, an employee’s admission of using marijuana before work does not, by itself, justify any discipline.
The key determination is whether the employee is impaired while working. Neither the employer’s assumption that marijuana use before work impairs the employee’s work performance nor the employee’s belief that he “feels no effects” is relevant.
Impaired While On the Job
Employers may discipline employees for off-duty cannabis use if the employee is impaired while working.
An employee cannot be disciplined solely based on admitting off duty use of cannabis. But an employer can act if there is credible evidence that the employee is impaired while working. The Civil Rights Department FAQ expressly states that the legal protections for off-duty use do not permit employees to “possess, be impaired by, or use cannabis on the job.”
When an employee has acknowledged smoking marijuana before work, the employer must determine if there is any contemporaneous and specific evidence that the employee is impaired while carrying out their job duties. Evidence of impairment can include erratic behavior, slurred speech, lethargy, and inattention to job tasks.
If there are no observable indicators of impairment, then the employer may not discipline the employee.
Reasonable Suspicion
If there are objective signs of impairment, the employer may test the employee for marijuana based on a reasonable suspicion standard.
California allows drug testing of employees when an employer has a reasonable suspicion that the employee is impaired by drug use. See “When Drug Testing May Be Permitted” on HRCalifornia.
If an employee has acknowledged off-duty marijuana use, it is especially important for the employer — before testing — to articulate specific examples of the employee’s behavior which support a reasonable suspicion that he is impaired. Otherwise, the employee may argue that he is being tested for simply admitting that he smokes marijuana before work, and that this is discriminatory.
Along with the protected status conferred on off-duty use of cannabis in 2024, the law also limits the types of testing that may be used to detect cannabis. Employers must ensure that the drug test being administered complies with the law, and that it detects only active THC.
These stricter requirements for cannabis testing are discussed in the CalChamber Alert article “How State Cannabis Laws Affect Testing, Questions About Use.”
Proactive Steps
There are proactive steps an employer should take regarding off-duty cannabis use.
Make sure your drug-free workplace policy is current. The policy should distinguish between protected off-duty lawful use and unprotected on-duty impairment.
It is important to train managers and supervisors to recognize signs of impairment and document specific behaviors. Emphasize that discipline cannot be based on assumptions about cannabis use before work.
Remember that before an employee may be disciplined, their impairment must be observable and documented. The documentation may include a drug test that screens for active impairment.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
