Regulatory Developments

California Employer Rights Under Prop 64: Are Workplaces Going to Pot?

On November 8, 2016, voters in three states—including California—approved ballot measures to legalize recreational marijuana use. Most provisions of the new rule, Proposition 64, became effective immediately—but the provision allowing commercial sale of marijuana was delayed: it goes into effect on January 1, 2018. On that date, the commercial sale of marijuana and marijuana-containing products by adults age 21 and older will be legal in the state.

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How does the law affect an employer’s right to enforce drug-free workplace rules? Here’s a review.

You can forbid the possession or use of marijuana on your property. The law legalized the use of marijuana on private property—in other words, people can partake in their homes. Its use is forbidden in public places, like restaurants, schools, and government buildings, so if you fall into those categories the law already forbids recreational marijuana use in your workplace. But employers in other categories may implement drug-free policies on their premises: Prop. 64 states that you do not have to “permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growth of marijuana in the workplace.”

You can test for marijuana as part of your drug-free workplace program. Your right to create and implement a drug- and alcohol-free workplace is expressly protected under the new law. Your ability to “have policies prohibiting the use of marijuana by employees and prospective employees” is protected. Employers retain the right to refuse to make an offer of employment to an applicant who tests positive for marijuana—even if their use was legal under California’s Compassionate Use Act (which protects medical use, not recreational use).

Federal law still applies. Although recreational marijuana use is legal under state law, it remains illegal under the Federal Controlled Substances Act. Federal law also prohibits marijuana use by commercial transportation operators. The Obama administration did not seek to enforce federal law in the matter, but the Trump administration has suggested that it will do so. Employers are expressly permitted by Prop. 64 to enforce federal law in the workplace.

City and county ordinances may also apply. Cities and counties in California are free to “opt out” of allowing retail pot sales, and many have. Others may impose tighter restrictions than the state on where marijuana can be sold and used—and these restrictions may change rapidly, so keep an eye on local politics. Local regulations may bolster your efforts to enforce drug-free workplace policies.

Let Workers Know

Even though you may be aware of these rules, your employees may not be. They may believe that “legalized recreational use” means that they are free to consume marijuana under circumstances that could affect their job performance—for example, on their day off, before returning to work. Familiarize your workers with your rights under the new law to minimize its impact on your workplace.

Drivers Beware

One likely effect of increased availability of marijuana and marijuana-containing products is an increase in accidents caused by impaired drivers. Given that transportation incidents are the leading cause of occupational fatalities in California, this is a legitimate workplace concern. Even if your workers aren’t driving under the influence, they are more likely to encounter other drivers who are. If your employees drive on the job, offer refresher training in defensive driving and how to recognize and react to an impaired driver.