Nicole Rice

The passage of Proposition 64 & what it means for employers

By Nicole Rice, Policy Director, Government Relations

Capitol Update, Nov. 17, 2016

Contrary to what many employers may believe, the legalization of the recreational use of marijuana does not affect your right to maintain a safe working environment for all your employees.

Proposition 64 allows for the immediate recreational use and possession of marijuana by adults 21 years or older and authorizes the sale, purchase and taxation of the substance by January 1, 2018.

However, the initiative also expressly states that it should not be construed or interpreted to limit employer policies for both medical and recreational marijuana users. Recreational legalization does not:

  • Restrict your rights and obligations to maintain a drug and alcohol-free workplace;
  • Require you to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace;
  • Affect your ability to have policies prohibiting the use of marijuana by employees and prospective employees; or
  • Prevent you from complying with state or federal law

Pre-employment screening and limited testing of existing employees is also specifically allowed under the proposition. Pre-employment drug testing is allowable in California if the employer screens all applicants. Random testing of employees who perform safety-sensitive jobs is also allowed, but only if there is a reasonable suspicion that the employee is under the influence and it is required under federal law.  Rules concerning post-employment testing are currently under scrutiny by the federal Occupational Safety and Health Administration.

Further, in 2008, the California Supreme Court ruled in Ross v RagingWire that employers can lawfully enforce a policy refusing to hire an applicant who tests positive for marijuana.  And, because marijuana remains illegal under federal law, manufacturers should not only feel confident about enforcing their policies regarding the use of federally-prohibited drugs, but are entitled to apply those policies equally across the board regardless if the employee or job applicant is in California.

For now, employers remain on solid legal ground pertaining to these policies, especially if federal law remains unchanged.  However, be aware that as the mainstream use of marijuana becomes more acceptable or if federal law is amended, policymakers could come under increased pressure to soften these workplace requirements.  Such action could be magnified if a reliable test for marijuana impairment is ever developed.

Manufacturers should review their current drug and alcohol policies to ensure they are clear and consistent with their desired approach for treating marijuana in the workplace. Supervisors and managers should be properly training on your policies and procedures and all employees should receive clear communication on the provisions.

Read more Labor & Employment articles

Capitol updates archive 989898989