Now that Californians have overwhelmingly voted to legalize the recreational use of marijuana, many employers may be wondering where they stand if they want a drug-free workplace.
Fortunately, Proposition 64 included a number of safeguards for employers, allowing them to have anti-drug workplace rules in place. In fact, these safeguards were built into the initiative to the point that the California Chamber of Commerce took a neutral stance on the measure.
Prop. 64 would allow Californians who are 21 and older to possess, transport, buy and use up to an ounce of cannabis for recreational purposes, and allow individuals to grow as many as six plants.
But that doesn’t mean that you must allow workers to spark up at work.
Under the measure:
- You can still conduct pre-employment drug tests and have policies barring from hire any applicants who test positive for marijuana.
- You can fire workers who test positive when they are tested for permissible reasons, like if they may be at fault in a workplace accident.
- You can bar use or consumption of marijuana at work.
- You can bar possession, transfer, display, transportation, sale or growth of marijuana in the workplace.
Accommodation
Fortunately, there is already precedent for employment issues that may arise when someone is using medical marijuana, and employment law experts say the same precedent would apply to recreational pot as well.
In 1996, California passed the Compassionate Use Act, which allows “seriously ill Californians” to use marijuana for medical purposes with a doctor’s recommendation.
But some employers were sued for having in place drug-testing policies in light of the law.
In 2008, the California Supreme Court tackled the issue in the case Ross vs. RagingWire Telecommunications Inc., opining that the Compassionate Use Act does not apply to employment and that marijuana, even for medical use, is still illegal under federal law.
The court ruled that California employers can require pre-employment drug tests and take illegal drug use into consideration in making employment decisions.
Essentially, Prop. 64 codifies that ruling.
Likely legal action
Wrongful termination cases in California have subsided dramatically since the RagingWire decision, but some employees still sue their employers alleging they didn’t have a right to drug test them.
Under Prop. 64, however, these suits would have no merit.
According to a report in the San Francisco Chronicle, the more typical actions these days are ones filed by employees who got high during a lunch hour or break and after returning to work caused an accident or harassed a colleague.
In those cases, it’s the victims who may sue the company, accusing it of not monitoring workers for intoxication or condoning the use of medical marijuana in the workplace.
Orange County employer defense attorney Todd Wulffson told the Chronicle that employers may want to consider:
- Having drug and alcohol policies in place.
- If you plan to drug test, having policies stating that “for purposes of drug testing, marijuana is an illegal drug.”
- Ensuring that employees read your drug and alcohol polices carefully and understand under which conditions they may be tested.
- Having someone on your human resources staff who is trained to spot drug intoxication.
- Having a zero-tolerance policy for being high on the job.
- Requiring that managers refer signs of drug use to human resources.
The law
These are the current rights of California employers:
- Employers can conduct pre-employment drug testing as long as they test all applicants.
- Employees can only be tested if there is a reasonable suspicion they are under the influence, or after an accident – unless there is no way the employee could have caused it – or if it is required under federal law.
- Random testing is generally only allowed for safety-sensitive jobs, including construction, driving and any other jobs that can put employees or the public in harm’s way.