On November 6, 2016, California voters passed Proposition 64 and joined five other states in legalizing the recreational use of marijuana. However, what many Californians fail to realize is that just because it is legal to smoke marijuana, does not mean it cannot be restricted. In fact, there seems to be a misconception, especially by California employers, that the law authorizes marijuana use anytime and anywhere, thereby making workplace drug policies unenforceable. However, employers can breathe a sigh of relief because this is simply not the case.
It is undeniable that passage of Proposition 64 signaled a big change in the cultural and social attitudes of Californians on the use of marijuana. This is inline with a recent analysis conducted by Quest Diagnostics, a clinical testing company that provides drug testing, which found an overall rise in positive drug tests for marijuana throughout the country. Drug tests in Colorado and Washington, the first two states to legalize marijuana, actually outpaced the national average by almost twofold. It is likely that California will follow in the footsteps of Colorado and Washington and see a sharp rise in marijuana use throughout the state, but what is an employer to do?
What many California consumers seem to overlook is that fact that law itself is almost sixty (60) pages and sets forth various restrictions on where and when marijuana may be used. As it relates to workplaces, the initiative specifically carves out that public and private employers are permitted to maintain a drug and alcohol free workplace. As such, employers are not required to permit employees to use, consume, possess, transfer, display, transport, sell, or grow marijuana in the workplace. Additionally, the law has no effect on the ability of an employer to have a policy prohibiting the use of marijuana by employees and prospective employees. (Section 11362.45(f).) This means that should an employer have a pre-employment drug testing policy, it is still permissible to deny employment based on positive drug result for marijuana. In fact, in a 2008 case called Ross v. RagingWire, the California Supreme Court found that an employer could even deny employment to someone who tested positive for marijuana even though the prospective employee had a medical necessity for it.
To be very clear, Proposition 64 was not a blank check for Californians to smoke marijuana whenever and wherever. As an employer, it may be easier to reconcile the legalization of the drug and its permitted/unpermitted use by employees by viewing it in a similar fashion to alcohol. Undoubtedly, there are very few jobs where an employer would permit an employee to come to work intoxicated, or to consume alcohol during work hours. In the same manner, employers in California may in fact restrict the consumption and use of marijuana by their employees. However, it is critical, if they are going to do so, that employers have a clear and explicit drug-free workplace policy which identifies marijuana as a prohibited substance and that impairment on the job will not be tolerated.