California Voters Approve Proposition 64
What Employers Need to Know About Their Workplace Drug Policies
Nov 9, 2016
On November 8, 2016, California voters approved Proposition 64 with a 56 percent vote, legalizing recreational marijuana for adults ages 21 and up. The Control Regulate and Tax Adult Use of Marijuana Act (the “Act”) allows adults to buy, possess, or transport up to one ounce of marijuana and grow up to six living marijuana plants for recreational use. The Act also regulates the commercial cultivation, distribution, and sale of marijuana through the creation of the Bureau of Marijuana Control (the “Bureau”). Although the Bureau and other state agencies are not required to have procedures and rules in place for issuing licenses to marijuana businesses until January 2018 (i.e., the sale of recreational marijuana cannot begin until 2018), adults may possess marijuana for recreational use starting today.
Thus, California employers are likely wondering what impact the Act will have on their workplace, and specifically their workplace drug policies. The short answer - not much.
The Act explicitly addresses employers’ rights by stating in its “Purpose and Intent” section that it is the intent of the Act to “allow public and private employers to enact and enforce workplace policies pertaining to marijuana.” The Act also states that it will not be construed or interpreted to: (1) interfere with employers’ right to maintain a drug and alcohol free workplace; (2) require an employer to permit or accommodate the use, possession, sale, or growth of marijuana in the workplace; (3) affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees; and (4) prevent employers from complying with state or federal law. Accordingly, employers in California are free to maintain and enforce their zero-tolerance drug policies.
Moreover, the Act does nothing to alter employers’ rights regarding employees’ medical marijuana use. Medical marijuana has been legal in California since 1996 through the Compassionate Use Act (Cal. Health & Saf. Code § 11362.5). Nonetheless, in 2008, the California Supreme Court made clear that the Compassionate Use Act does not prevent employers from terminating employees based on medical marijuana use. In Ross v. RagingWire Telecommunications, Inc., the court held that employers are not required to accommodate an employee’s medical marijuana use (even if such use is off-duty) because marijuana is still illegal under federal law, the Controlled Substances Act (21 U.S.C. § 812). The court reasoned that the California Fair Employment and Housing Act does not require employers to accommodate illegal drug use. Additionally, although the Compassionate Use Act legalized medical marijuana, it did so to protect users from criminal liability, not workplace actions.
Several legislative attempts were made to overturn Ross, most notably AB 2279, which passed both houses of the legislature in 2008 but was vetoed by then Governor Schwarzenegger. Since then, at least seven states have enacted legislation to prohibit discrimination on the basis that an employee is a registered medical marijuana user. In light of the passage of the Act, the nationwide developments legalizing and decriminalizing marijuana, and California’s generous employee protections, it seems likely that California’s legislature will revisit efforts to overturn Ross in the coming years. Employers should understand that Proposition 64 represents the beginning, not the end, of additional developments in marijuana law generally, and cross-over with employment law more specifically.
In the meantime, because of Proposition 64’s passage, employees may be unaware that even their off-duty marijuana use (recreational or medicinal) can put their employment at risk. Employers should communicate to employees that their drug-free work policies still apply, and may want to update their employee handbooks to reiterate the company’s compliance with federal law, in addition to state law. In the long term, certain employers who do not operate in safety-sensitive or federally regulated industries may consider revisiting their zero-tolerance policies. But in the meantime, if marijuana use among employees becomes more prevalent because of passage of the Act, employers must ensure they are consistently enforcing their zero-tolerance policies.