Dear Ask Rita in HR: Since Proposition 64 was approved in the recent California election, I have been receiving a number of questions from employees who are asking how these changes in the marijuana law will affect our nonprofit's drug policy. We have a strong drug-free workplace policy and rigorously enforce it. What can we tell our employees?
Signed, Dazed and Confused
Dear Dazed and Confused: To put it simply, the new law that decriminalizes the recreational use of marijuana in California and other states will have very little impact on your ability to maintain and enforce your nonprofit's drug-free workplace policy.
While the new law will create a wide variety of changes in the institutional and cultural treatment of marijuana, including regulation of cultivation, sale, taxation and use of marijuana going forward, a quick flashback as to what led up to this point is in order.
The History of Weed Legalization
The sale and use of marijuana has long been illegal under both California and federal law. In 1996, the California Compassionate Use Act decriminalized the use of marijuana for medical purposes, authorized and prescribed by a physician. One of the first workplace issues that arose was that authorized users believed that an employer should be required to permit the use of medical marijuana by employees who properly obtained "the card". It was believed that the legal use of medical marijuana should be considered a reasonable accommodation under the California Fair Employment and Housing Act if the employee was a "qualified individual with a disability."
In 2008, the California Supreme Court rejected this argument and held that employers could maintain and enforce their drug policies, specifically for the use of medical marijuana.
In Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal. 4th 920, the Court upheld the termination of an employee who tested positive for marijuana notwithstanding the fact the employee had a valid prescription for the marijuana. The Court noted that the Act only removes criminal penalties for the authorized medical use of marijuana and nothing more. Marijuana use remains illegal under federal law, and thus the use of medical marijuana is not considered the same as the use of other "legal" prescriptions, as the employee argued.
In James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012), the Ninth Circuit Court of Appeals came to a similar conclusion in applying the Americans with Disability Act -- finding that because federal law does not authorize marijuana use, users may not seek protection under the ADA.
In November 2016, eight states, including California, voted to legalize medical and/or recreational use of marijuana. That brings the total to 29 states that allow at least some use. Outside of California, employers remain free to maintain and enforce drug-free workplace policies. Colorado and Washington, for example, provide that nothing in their laws limits employers in their efforts to maintain these policies. Indeed, the Oregon Supreme Court has issued a decision that tracks with the California decision in RagingWire, discussed above.
For a comprehensive comparative review of the state laws on medical marijuana, please refer to information from the National Conference of State Legislatures.
Despite the many institutional challenges and uncertainties facing California in the wake of the passage of Proposition 64, one thing is clear: employers remain free to maintain and enforce workplace drug policies that prohibit the use of marijuana, and marijuana use is not protected from adverse employment consequences.
Indeed, it would appear that marijuana now joins alcohol as a "legal drug" that California employers have the clear right to prohibit and discipline for use in the workplace.
Proposition 64 specifically states that it does not amend, repeal, affect, restrict or preempt "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."
It also should be noted that nothing in Proposition 64 limits the ability of an employer to continue to enforce its policies to test employees and applicants for the use of marijuana and that positive results may continue to result in discipline, including termination, under those policies.
The Takeaway for Employers
While California voters have expressed their desire to demonstrate tolerance for the recreational use of marijuana, employers may still demonstrate zero tolerance for employees who violate policies prohibiting its use. In the wake of Proposition 64 and to make it perfectly clear that nothing has changed in the workplace, employers would be well-advised to review their policies and make sure that employees and job applicants are aware that they will continue to enforce these policies, regardless of the results of the election. Specifically, a drug-free workplace policy can specify that the term "drugs" includes marijuana (and its derivatives and all related cannabinoids). In so doing, this will reinforce the employer's commitment to maintaining a drug-free workplace and at the same time insure that employees will have no false sense of security in relying on the results of the election to avoid the consequences of that commitment.
Mike Bishop, J.D. is an Employment Risk Manager for the Nonprofits Insurance Alliance Group. Mike spent the first 32 years of his legal career representing and counseling public and private sector employers in all areas of employment and labor law. He began his service as an Employment Risk Manager in July of 2016 and greatly prefers serving the members needs for employment resources before they become involved in litigation.