READING BETWEEN THE WEEDS:
PROPOSITION 64 STAYS OUT OF THE WORKPLACE

By Erika Frank

On November 8, California voters decided for California to legalize adult recreational use of marijuana. Proposition 64, also known as the Adult Use of Marijuana Act, legalizes the recreational use of marijuana for adults 21 years old and over, imposes a 15 percent excise tax on marijuana sales and establishes a regulatory framework for the sale of marijuana.

Legalization of marijuana for recreational purposes will be a significant change to current law. However, several things will not change.

For example, smoking or ingesting marijuana in public will remain unlawful, as will smoking or ingesting marijuana in places where smoking tobacco also is prohibited. Similarly, driving under the influence of marijuana will remain illegal.

But what about smoking weed at work? When it comes to the workplace, California employers can take a deep breath of fresh air, because Proposition 64 is intended to maintain the status quo for employers seeking to maintain a drug- and alcohol-free workplace.

In other words, employer policies related to drug possession, use and impairment as well as testing should not be compromised with the legalization of marijuana use under Proposition 64.

California and Marijuana
Legalizing marijuana at the ballot box is not new in California. In fact, this was the third time legalization of marijuana was before California voters.

The first time was 10 years ago when voters enacted the Compassionate Use Act of 1996, which allowed for the medicinal use of prescription marijuana, but did not allow for recreational use.

In an effort to extend legalization to recreational use, Proposition 19 went before the voters in 2010. However, Proposition 19 failed to pass by a vote of 46.5 percent to 53.5 percent. The California Chamber of Commerce opposed Proposition 19 because it provided protections to employees who used marijuana and prohibited employers from maintaining a drug-free workplace.

However, the same is not true with Proposition 64 - workplace protections are intended to remain.

Proposition 64's Workplace Protections
In Proposition 64, adult recreational use of marijuana is permitted; however, such use stops short at the workplace. Proposition 64 states explicitly that it is intended to "allow public and private employers to enact and enforce workplace policies pertaining to marijuana."

The initiative also provides that it will not be construed or interpreted to amend, repeal, affect, restrict or pre-empt:

"The rights and obligations of public and private employers to maintain a drug and alcohol free workplace or 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." (Section 11362.45 (f))

These provisions set Proposition 64 separate and apart from the failed 2010 initiative, which did not protect employer policies concerning the use of marijuana in the workplace. Moreover, these provisions demonstrate that the intent of the initiative is not to disrupt the current status quo concerning workplace safety and drug prevention.

Maintaining a Drug-Free Workplace
California employers are accustomed to variations between federal and state law. The same will be true with the legalization of recreational marijuana. Although the enactment of Proposition 64 legalizes recreational use of marijuana in California, marijuana will still remain an illegal Schedule I substance under the federal Controlled Substances Act. Therefore, employers may continue to prohibit use, possession and impairment at work, as well as continue to test for use when appropriate.

Similarly, both federal and state laws require employers contracting with the government to maintain a workplace free from drugs and certify that the business is drug-free. Both federal and state drug-free workplace acts prohibit use of "controlled substances," as defined under the federal Controlled Substance Act.

Finally, both state and federal law impose strict drug testing and other related requirements on employers and operators engaged in commercial transportation. As such, employers must continue to comply with these drug-free workplace laws.

What about pre-employment drug testing policies? Pre-employment drug testing also is a lawful mechanism employers currently may use to maintain a drug-free workplace.

California employers may conduct pre-employment drug testing of all applicants before hire and deny employment if the drug test comes back positive, even if the applicant was legally using marijuana under the state's Compassionate Use Act, as affirmed by California's high court in the 2008 decision of Ross v. RagingWire. Proposition 64 does not intend to interfere with these workplace policies or practices.

In short, these rights and practices aimed at maintaining a safe and drug-free workplace may continue even after marijuana is legalized for recreational use. The challenges facing employers won't be maintaining their drug free policies and practices, but rather communicating and enforcing these policies and practices as adults are now permitted to use marijuana for recreational purposes.

Don't Let Workplace Policies Go Up in Smoke
Proposition 64's provisions related to the legalization of marijuana and workplace protections have taken effect November 9, the day after the election. Therefore, employers should review existing policies and remind employees not only about the company's drug-free workplace policy and practices, but also specify that marijuana is also prohibited.

Employees also should be reminded that impairment on the job will not be tolerated, even if impairment was due to a morning smoke before leaving the house for work.

When reviewing existing policies or creating new ones, make sure your policy clearly states the company's position on drugs in the workplace, including marijuana.

In addition, if you conduct pre-employment drug testing, inform all applicants of this policy and clarify that they will also be tested for marijuana use.

Finally, once your policy is reviewed and distributed, be sure to follow the policy and steer clear of any exceptions because making an exception for one person could undermine the policy and set your company up for future litigation.

A few other things to consider when developing a drug-free workplace policy:

- Establish a policy banning the use, possession or sale of drugs in the workplace and on company property as well as being under the influence of an illegal or controlled substance while on the job, including alcohol and marijuana.

- Train all supervisors about the company's drug-free workplace policy, emphasizing the seriousness and importance of the policy.

- Train your supervisors to identify signs of drug or alcohol use.

- Clearly communicate your policy and consider redistributing the policy on an annual basis.

Source: California Chamber of Commerce, Alert

January 2017 - CMSA Communicator