Pot and the California employer post-Prop. 64

Proposition 64, which voters approved in 2016, says a Californian who is at least 21 who uses marijuana cannot be prosecuted by state or local authorities. But the decriminalization of marijuana in California has no impact on California employers with policies prohibiting the possession or use of marijuana and other drugs in their workplaces.

Here’s why.

Prop. 64 specifically says it does not restrict an employer’s right “to maintain a drug- and alcohol-free workplace . . . or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law” requiring a drug-free workplace.

In 2010, by contrast, California voters rejected a ballot measure that would have decriminalized marijuana and, further, would have prohibited employers from punishing an employee for permitted marijuana consumption that did not actually impair job performance.

Thus, post-Prop. 64, employers may continue to disqualify applicants who test positive for marijuana and terminate employees who possess, use, or test positive for the substance – or, generally, not do so.

The California Supreme Court ruled in 2008 that employers may terminate even employees who test positive for marijuana that the employee is using for medicinal purposes under California’s 1996 medical marijuana law, the Compassionate Use Act. An employer’s duty to accommodate an employee’s disability excludes any duty to accommodate marijuana use to treat the disability.

In Ross v. RagingWire Telecommunications, Inc., the California Supreme Court concluded that the CUA did not create “a broad right to use marijuana without hindrance or inconvenience, enforceable against” private employers. Rather, it established “a narrow exception to the [state’s] criminal law.”

As a Fresno federal judge put it in a 2016 ruling interpreting the CUA, “it does not violate the [state’s employment discrimination law] to terminate an employee based on their use of marijuana, regardless of why they use it, and the Compassionate Use Act did not change that.” Nor did the much broader Prop. 64.

Recreational marijuana use also is not protected by California law prohibiting employers from punishing their employees for engaging in “lawful conduct occurring during nonworking hours away from the employer’s premises.” It continues to be a federal crime to possess, use, grow, process transport, purchase, or obtain marijuana in any quantity. As long as marijuana remains classified as a Schedule 1 drug along with heroin and ecstasy, using marijuana cannot be considered “lawful conduct,” even away from work on personal time.

But if Prop. 64 did not constrain existing employer rights concerning workplace drug policies, it also did not remove existing restrictions on those rights.

On the one hand, the Drug Free Workplace Act continues to require companies with federal contracts worth at least $100,000, and organizations that receive federal grants of any size, to maintain zero tolerance drug policies. Federal regulations, such those applying to interstate truck drivers, also continue to require such policies, including random drug testing.

On the other hand, California’s constitutional right to privacy prohibits employers, except where required by law, from testing a current employee for any substance without reasonable suspicion the employee is impaired at work, such as after a workplace accident. Unless covered by state or federal regulations, random drug tests are allowed only for employees in certain safety- and security-sensitive positions, such as correctional officers and employees who operate heavy machinery around co-workers.

In the current tight labor market, an employer not required to maintain a drug-free workplace may choose not to disqualify applicants or discharge employees for using marijuana in a way California no longer considers criminal. But that is a matter of economics, not law. Before Prop. 64, an employer had the broad right to regulate drugs in the workplace. The dramatic changes Prop. 64 made to the legal landscape in California related to marijuana stopped at the office door.

Dan Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at eaton@scmv.com. His Twitter handle is @DanEatonlaw.

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