Last fall, California voters approved Proposition 64, legalizing the recreational use of marijuana for persons 21 and older. In the wake of Proposition 64’s passage, many employers have been puzzled about the impact of the new law upon their human resources practices. Unlike some prior initiatives that were not passed, however, Proposition 64 should not have a substantial effect on employers.
What does Proposition 64 do?
In general, Proposition 64 changes the law with respect to marijuana, not employment practices. The statute:
- legalizes the possession and use of up to one ounce of marijuana for persons 21 and older;
- legalizes the smoking of marijuana in private homes and at licensed businesses; and
- regulates the cultivation, distribution, sale and use of marijuana.
What does Proposition 64 not do?
As mentioned above, Proposition 64 changes California law regarding marijuana, but it does not alter employment law in any meaningful way. Among other things, Proposition 64:
- does not alter federal law, which still prohibits the possession and use of marijuana - Proposition 64 does not affect federal law, which has long prohibited the possession and use of marijuana for any purpose. Although federal authorities have generally been lenient in enforcing the law against persons using marijuana for medicinal purposes, the Trump administration has indicate that it may take a stricter and more aggressive enforcement posture than recent administrations with respect to marijuana enforcement.
- does not alter the right of employers to maintain a drug-free workplace - Just as the fact that alcohol is legal does not preclude employers from prohibiting alcohol in the workplace, the legalization of marijuana under state law does not prevent employers from adopting or maintaining drug-free workplace policies. Proposition 64 specifically states that it does not limit “the rights and obligations of public and private employers to maintain a drug and alcohol-free workplace.”
- does not alter existing law regarding drug testing - California law generally permits employers to mandate drug tests for applicants as a condition of employment, but it severely restricts the right of most employers to require existing employees to submit to drug tests. Proposition 64 does not alter existing law regarding drug testing. We recommend that employers not require existing employees to submit to drug tests without conferring with counsel in advance.
- does not require employers to accommodate employees’ use of marijuana for medical purposes - Proposition 64 also specifically addresses the issue of accommodation by stating that it does not create an obligation “to permit or accommodate the use ... of marijuana in the workplace.” As a result, the California Supreme Court’s decision in Ross v. RagingWire Telecommunications, holding that employers can lawfully refuse to employ persons who use marijuana for medicinal purposes, remains good law.
What should employers do now?
Because Proposition 64 does not really affect employment law, it does not require extensive action by employers. Nevertheless, prudent employers will review their general policies and practices regarding drugs in the workplace and assure that employees understand them:
- Review and update policies as necessary - Employers that have not adopted policies regarding the use of drugs and alcohol in the workplace should do so, and those that have not reviewed their policies in recent years should determine whether revisions are appropriate. As employers adopt or update policies, they should recall that they generally cannot require existing employees to submit to drug or alcohol tests unless Department of Transportation regulations obligate them to do so.
- Clarify and communicate existing policies - Once policies are adopted or updated, employers should clarify and communicate their policies to their employees. Like some employers, many employees do not understand the impact of Proposition 64 upon their rights and obligations in the workplace. By communicating their policies, and explaining the new law, employers may be able to reduce the likelihood of policy violations by misguided employees.