California voters have passed Proposition 64, legalizing marijuana for recreational use for adults over the age of 21. However, because marijuana is still classified as a Schedule I substance and is illegal under federal law, employers will still have the right to maintain a drug free workplace.
First, Prop 64 will not take effect immediately. While individuals will be allowed to grow, possess and smoke certain amounts of marijuana recreationally after its official passage, dispensaries will not be licensed to sell recreational marijuana until January 1, 2018.
Second, the use of marijuana may still be prohibited in the workplace. Prop 64 states that its intent is to “allow public and private employers to enact and enforce workplace policies pertaining to marijuana.” Further, the law states that it will notbe construed or interpreted to:
• Restrict the rights and obligations of public and private employers to maintain a drug and alcohol-free workplace;
• Require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace;
• 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.
On the other hand, if marijuana is prescribed medicinally to employees, as has been legal for several years now, employers may have to jump through some hoops. Historically, courts have routinely sided with employers concerning the use of medical marijuana and the employer’s right to a drug free workplace. In Shepherd v. Kohl’s Dep’t Stores, a federal court in California recently ruled that the plaintiff did not have a discrimination claim under Fair Employment and Housing Act (“FEHA”) because, even with a prescription, FEHA does not require California employers to accommodate drug use illegal under federal law. However, this vote indicates that the tides may be changing. Given this, an employer may not want to be the first case to go the other way. Employers therefore may want to consider accommodations for employees who bring medical concerns to their attention.
Despite the vote, drug free workplaces will not end, as employers still have the right to enforce their drug policies. However, these polices should be clearly communicated to employees, through both the employee handbook and through training.
COUNSEL TO MANAGEMENT:
Because of the passage of Prop 64, The Saqui Law Group advises that employers immediately re-issue their drug free policies, with a notice that the passage of Prop 64 will not affect this policy. We recommend comparing this zero-tolerance policy with a policy against drinking alcohol on the job – while drinking alcohol may be legal in the state, it is not tolerated in the work place. Please contact The Saqui Law Group if you have any questions on what Prop 64 means for your workplace, and steps that you can take to ensure a drug-free work zone.