While the recent presidential election has appropriately garnered lots of interest and discussion in the Golden State, passage of Proposition 64 – the voter initiative to legalize the recreational use of marijuana – is also the talk of the town. Apparently a lot has changed since a similar initiative was voted down six years ago. Various pundits have voiced opinions about the probable effects of legalizing weed in the most populous state in the country. Many employers are voicing concern about the viability of their existing drug-free workplace policies. What does Prop 64 really mean for California’s employers?
Widespread Legal Recreational Use May Not Be Immediate
While Californians over 21 years of age or older may now legally smoke marijuana legally, they must do so privately. They may have up to 28.5 grams of marijuana and up to 8 grams of concentrated marijuana (e.g., hash) in their possession, at least according to the Official Voter Information Guide that was published in connection with the proposition.
Appropriately aged adults may also grow up to six marijuana plants at a private home. Under the proposition, they may not:
• Smoke marijuana while driving a motor vehicle
• Smoke it in a public place, or in any location in which smoking tobacco is prohibited
• Possess marijuana on the grounds of any school, day care center, or youth center while children are present
Unless you have your own plants, you may find it difficult to purchase marijuana legally. People without a medical marijuana card may not be able to purchase the product from dispensaries until a separate provision of Prop 64 goes into effect on January 1, 2018. The state has until then to set up a dispensary system.
Prop 64 was not Crafted so as to Affect Employer’s Workplace Drug Policies
Employment law experts note that Proposition 64’s primary component is the decriminalization of recreational marijuana use; it does not ban or restrict a California employer’s ability to regulate marijuana usage within the workplace. In fact, the proposition explicitly allows public and private employers to enact and enforce workplace policies pertaining to marijuana.
Employers are generally allowed to set rules regarding productivity within the workplace. One’s ability to be stoned at home does not, therefore, translate into the right to show up for work in such a condition.
Testing is Not an Exact Science
One problem with marijuana testing: It can observe the presence of marijuana within a person’s system. Since the chemicals associated with marijuana can remain in body cells for days – some argue weeks – after pot use, there is no direct correlation between testing positive for marijuana, on the one hand, and being impaired by it, on the other. As law enforcement officials note, “There is no equivalent of .08 BAC for marijuana.”
Marijuana Remains a Schedule I Drug Under Federal Law
Employers and pot smokers alike should reflect upon the fact that under the federal Controlled Substances Act, marijuana remains a Schedule I drug. That designation is reserved for substances that are prone to abuse and psychological/physical dependence. Because of that federal law, employers can still refuse to hire applicants who test positive for marijuana use.
Employers Should Review Their Drug Policies
In the aftermath of Prop 64’s passage, employers will find it important to review existing drug policies to ensure that existing employees understand employer policies regarding marijuana use. They should also make sure those positions are clear for new hires. Navigating through the post-Prop 64 time frame can be difficult. Many prudent employers are seeking the counsel of experienced commercial and employment attorneys like CKB VIENNA LLP. Our firm has represented all sorts of businesses in employment law matters. Our team understands the complexity of the issues and stands ready to represent you aggressively. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone at 909.980.1040 or complete our online form.