Q: Can I sue over wrongful termination
Hi I got injured at work and they had to rush me to the E.R I received workers comp for two weeks and they terminated me after the pee tested positive for marijuana I had a medical card at that time but they didn’t drug test me before hiring me and that is there policy
A: You can always sue, but that does not mean you will win. In California you cannot bring a wrongful termination suit before the workers compensation appeals board WCAB, so you want to find a civil attorney practicing employment law, not a workers compensation attorney.
A:
At this time an employer can still terminate an at will employee for a failed drug test. "At will" means there is no employment contract; the employer can terminate you at any time regardless of cause. However, if you had a workers compensation claim that your employer was aware of and your WC doctor supported your prescription for medical marijuana, things get more complicated. You may be able to maintain a 132a discrimination claim, which will provide wage loss, because you were terminated while off work for your comp case. I suggest you get representation early. The statute of limitations for a 132a claim is one year from the event.
With respect to wrongful termination, that is not something you can claim in workers compensation. You will need to speak with a civil attorney.
A: Sadly, if there a policy at this company no 'controlled substance' use -- and marijuana is still a controlled substance in FEDERAL law -- then you will have a tough time convincing the judge the termination was unlawful. LABOR CODE 132A says a worker cannot be discriminated against for request workers comp benefits, you could file a 132a petition before the WCAB and see if the WCAB agrees the termination was retribution for getting hurt at work. Otherwise, you need an EMPLOYMENT LAW specialist well-versed in the Fair Employment and Housing Authority regulations about terminating people for testing positive for medical marijuana.
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