Recreational Marijuana Use in California
California employment law must take into consideration that on Tuesday, November 8, 2016, voters approved new marijuana laws in seven states. There are now a total of 28 states (plus the District of Columbia) with medical marijuana laws and 8 states (plus the District of Columbia) with recreational marijuana laws. California joins the list of states with recreational use as California voters approved Proposition 64,the Adult Use of Marijuana Act. The law legalizes the non-medical use and possession of up to one ounce of marijuana, up to 6 marijuana plants, and up to 8 grams of concentrated marijuana products for those 21 and older. Smoking or ingesting marijuana is prohibited in public or while driving or riding in a vehicle.
In terms of timing, the law calls for the Department of Consumer Affairs (Bureau of Marijuana Control) to begin issuing dispensary licenses by January 1, 2018, since currently, recreational marijuana cannot be purchased in California. The law also requires the Division of Occupational Safety and Health to convene an advisory committee by March 1, 2018, to evaluate whether there is a need for industry-specific regulations, such as on exposure to second-hand marijuana smoke by employees or other work-related risks. Lastly, the committee will decide whether industry-specific regulations are necessary by October 1, 2018.
Impact on California Employment Law
The new law, which passed with roughly 56% of the vote, does not prevent employers from maintaining and applying zero-tolerance or similar drug policies in places of employment. The law's intent clearly states that public and private employers are still entitled to enact and enforce policies regarding marijuana. The law goes on to state that nothing in its language shall be construed or interpreted to:
- amend, repeal, affect, restrict, or preempt the rights and obligations of public and private employers to maintain a drug- and alcohol-free workplace;
- require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the 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.
Marijuana remains a Schedule I drug under the federal Controlled Substances Act. The drug's Schedule I status means it is illegal under federal law, regardless of state law to the contrary. Even with the passage of Proposition 64, California employers are free to screen applicants, administer drug tests upon reasonable suspicion of marijuana use, and discipline employees who test positive for marijuana. The law makes it clear that employers are still able to enforce drug-free workplace policies, including a prohibition on all uses of marijuana. Further, employers are not required to “accommodate” marijuana use – medical or otherwise. The California Supreme Court already pronounced that employers need not accommodate the use of medical marijuana in the 2008 Ross v. RagingWire Telecommunications, Inc. decision. Employers, such as those in the transportation industry that are required under federal law to conduct random drug testing, will be permitted to continue such testing.
What Actions Should Employers Take to Avoid Issues?
Unlike many new laws passed over the last several years, the passage of Proposition 64 does not require significant changes for California employers. However, there are a few suggested actions for employers to ensure proper communication to employees. First, human resources departments, or those departments responsible for updating employee policy manuals, should update drug policies, especially if a zero-tolerance policy is in effect. Second, policy updates should reflect the addition of marijuana to the list of prohibited substances. Since some employees might question an employer's right to restrict marijuana usage, proper citations of the Adult Use of Marijuana Act and federal law will in no uncertain terms convey that employers have always had the right to prohibit legal substances from being in their system while at work. Lastly, managers should be reminded of their compliance and responsibility with reasonable suspicion procedures, to include spotting the signs of marijuana impairment and proper testing procedures.
Employers and human resources departments should consult with California employment lawyers with any questions or concerns regarding the impact of Proposition 64. To discuss your situation, don't hesitate to contact leading California employment lawyers at Kingsley & Kingsley by calling us toll-free at (888) 500-8469 or by clicking here.