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Can I collect unemployment if I was fired for having a recommended medication from my doctor at work that was never opened or consumed on work hours?

by Samantha
(Visalia, California)

I was employed as a waitress and have been at the same restaurant for almost 3 years. I have never been written up or given any verbal warnings in the my time working there.


One evening at work, a co-worker offered me a medical cannabis cookie. (We both have up to date medical recommendations, canabis cards, from our doctor. This means we can legally carry cannabis and use for medical purposes. I did not see her put it in my purse but she said it was in my purse as she left at the end of the evening. I continued to close down the restaurant with three others including a manager.

As I was clocking off and leaving the building a coworker asked me for some of my cookie. I am unsure how he was aware I had a cookie, but I said "no, I am going home and eating my cookie." A manager over heard and asked what we were talking about so I gave him the cookie that was wrapped and sealed (not opened, not eaten) with the "FOR MEDICAL USE ONLY" sticker attached. He took the cookie, opened it, smelt it and threw it away. He asked me why I had brought it in his building and that I should know better.

I told him I didn't bring it, but it was given to me. He told me to go without giving any write up or warning. When I came to work 3 days later I was told to write a statement of the incident and was given a week suspension while it was under investigation. A week later I was terminated for having a controlled substance on the property. I applied for unemployment and was DENIED!!!

The reason: "...appeared at your job in an intoxicated condition." That never happened, considering the fact that I worked for over 7 hours the evening of the incident! I believe the incident that caused my termination was not willful misconduct and my employer gave false information to the EDD.


Hi Samantha,

This is different. I knew this was allowed in California, but I was not familiar with regard to unemployment. So I went looking for something that might help.

I think if you read 11362.785 you'll see that an employer is not required to accomodate the use of medical cannabis, but it certainly stops short of saying you're not allowed to have it in your purse.

Since the employer is now saying you were intoxicated my cynical mind thought...ah the employer must have read that too.

California disqualifies for reporting to work in an intoxicated state, unlike some states that require the employer to prove the intoxication with a test.

So your goal is show the employer is lying. You need to use anything you have to that end. This would include the documentation you possess which shows you have a right to the medical marijuana, an appeal letter with a detailed account of what happened (be sure to name the manager) and if you can get a witness that is willing to testify truthfully...it certainly wouldn't hurt.

One point you made that stands out is that you were leaving for the day, you had already worked a seven hour shift. It defies logic that a responsible employer would let someone, supposedly intoxicated, work seven hours and then take action. It doesn't make sense to me and if presented well at the hearing, it won't make sense to the judge either.

It's a strong point, and I'd like to see how the employer tries to explain it away.

Chris





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