Thank you for your question. I would approach this situation very carefully if I were you. If there is anything in your office or in the adjacent office which would be considered contraband by your employer, then you need to immediately remove it. If your employer has a policy
which prohibits you from using Marijuana, then your employer has the right to ask you to take a drug test. Unfortunately, an employee does not have any protection from this, even if the use of marijuana is legal and for legitimate medical reasons.
In the disappointing January decision, Ross v. Raging Wire, the California Supreme Court determined that medical marijuana patients cannot state legal claims for damages under the Fair Employment and Housing Act or on public policy grounds for retaliation from employers for testing positive for marijuana. However, a current employee does retain the right to refuse to take a drug test. Remember, you do not need to sign your rights away or agree to quit, and if it comes down to it, make them terminate you as opposed to doing so voluntarily. Here are some strategies to consider:
1. Refuse to take the drug test
If you have an upcoming drug test, and your prospective employer is unaware of your patient status, then you may be able to refuse to take the drug test. If you are a patient who is in a non-safety-sensitive position, and your employer has no probable cause to administer a drug test (such as your involvement in an accident or injury), and you have not previously agreed to drug testing as a condition of your employment, then you may refuse to take a drug test when asked by your employer. If you are retaliated against for doing so, you may have a legal cause of action based on the case, Semore v. Pool (1990) 217 Cal.App.3d 1087, 1098).
2. Negotiate the date of the drug test, cease using medical marijuana and use non-cannabis-related medicine for your condition
If you have the ability, negotiate with your employer as to when exactly you are required to take the drug test. This will allow you to cease using medical marijuana long enough (approximately 1-5 days for occasional users, 1-3 weeks for regular users, or 4-6 weeks for heavy users) so as to avoid discrimination. Before you take the test, you may take a home drug test. For more information on drug testing, see California NORML's page.
Please let me know if you have any further questions.