Question: Now that California has legalized marijuana for medicinal and recreational purposes, can employers still maintain and enforce drug-free workplace and drug testing policies?
Answer: Yes. Although Proposition 64 (the “Control, Regulate and Tax Adult Use of Marijuana Act”) legalizes recreational use of marijuana by adults 21 years of age and older, it does not change employers’ right to maintain drug-free workplaces or drug testing policies.
Approved by 56% of California voters on November 8, 2016, Proposition 64 is the third time California voters had the opportunity to vote on legalizing marijuana. The first ballot measure was Proposition 215 (the “Compassionate Use Act of 1996”), which passed and allows medicinal use of prescription marijuana. Then, in 2010, Proposition 19 (the “Regulate, Control and Tax Cannabis Act of 2010”) failed to pass, in part because it prohibited employers from maintaining a drug-free workplace.
By contrast, Proposition 64 explicitly states that it is intended to “allow public and private employers to enact and enforce workplace policies pertaining to marijuana.” The proposition also states that it will not be construed or interpreted to amend, repeal, affect, restrict, or preempt “[t]he 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.”
Therefore, despite the passage of Proposition 64, employers may continue to prohibit employee use and possession of marijuana at work, and forbid employees from working while impaired by marijuana, regardless of whether it was prescribed or used recreationally. Employers may also continue to test for marijuana use when appropriate.
The challenge for employers is to clearly communicate to employees their policies regarding workplace drug use and drug testing. It is important to have drug-free workplace policies that clearly communicate that:
• the use, possession, or sale of alcohol and drugs, including marijuana, while on the job or performing company business is prohibited;
• being under the influence of an illegal or controlled substance, including alcohol and marijuana, while on the job or performing company business is prohibited; and
• the employer’s drug-free workplace policy applies to the use of marijuana, whether prescribed or used recreationally.
Employers who conduct post-offer, pre-employment drug tests may continue to do so and may deny employment if the drug test comes back positive, even if the applicant was legally using marijuana under the Compassionate Use Act. In short, Proposition 64 does not change employers’ ability to conduct drug testing and consistently enforce their drug-free workplace policies.
It is also important to remember that although recreational marijuana use is now legal in California for adults 21 years of age and older, marijuana remains an illegal Schedule I substance under the federal Controlled Substances Act.
Finally, it is prudent to make sure managers and supervisors are familiar with their company’s drug-free workplace policy and to train them to recognize signs of drug and alcohol use and impairment.