Proposition 64, also known as the Adult Use of Marijuana Act (“the Act”), passed on November 8, 2016. The Act represents a significant change to California law. Although the initiative expressly states it does not change employer’s rights and obligations to maintain a drug-free workplace, California employers should plan for reality: more employees may be under the influence of marijuana at work.

What Changed

Among other things, the Act decriminalizes adult use of marijuana for recreational purposes under state and local law. Adults ages 21 and over may now use, possess, purchase and grow marijuana within defined limits, in a private residence or a business licensed for on-site marijuana consumption. The initiative includes other provisions as well, such as a licensing system for manufacturers and retailers, and new taxes for growing and selling.

What Did Not Change

The Act expressly intends to “allow public and private employers to enact and enforce workplace policies pertaining to marijuana.” The Act also 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.”

Generally, marijuana can be treated like alcohol. Employers may continue to adopt and enforce policies to maintain an alcohol- and drug-free workplace, or to prohibit possession or use of marijuana on their premises or while an employee is on duty. The Act maintains existing laws making it unlawful to operate a vehicle while impaired by marijuana, so employers’ policies should also prohibit employees from driving under the influence of marijuana. There may be litigation over the term “use,” if an employee is discharged merely for having marijuana metabolites in his or her system. The Act does not change the California Supreme Court’s decision in Ross v. RagingWire Telecomm., Inc. The Court explained that marijuana is an illegal Schedule I drug under the federal Controlled Substances Act, and California’s Fair Employment and Housing Act (“FEHA”) does not require employers to accommodate the use of illegal drugs. Nothing in the Compassionate Use Act of 1996, which legalized medical marijuana in California, requires employers to employ individuals who test positive for marijuana or permit marijuana use as a reasonable accommodation. Because marijuana remains an illegal drug under federal law, the Court’s decision in RagingWire likely will continue to apply to recreational marijuana.

The Act does not prohibit employer drug testing of applicants or employees. Therefore, employers should be able to continue their drug testing programs.

Finally, the Act did not change California’s smoke-free workplace requirement. Employers must maintain an environment free of both tobacco and marijuana smoke.

Ripple Effects

Although the Act does not change employment law, it likely will affect the workplace. Although the law may not protect employees who indulge in recreational marijuana use, even away from work, employers will have to decide whether to modify their policies to reflect the new laws. As an employee relations matter, management may not wish to discharge employees who engage in lawful activity if there are no effects on the employees’ work.

Employers also should consider that lawfully distributed marijuana may be ingested in many different ways. For example, retailers likely will sell “edibles,” such as candies or baked goods, which can be much more potent than a “joint.” Employers seeking to maintain a drug-free workplace or conduct “reasonable suspicion”-based testing therefore will not be able to rely on the familiar smell of marijuana smoke or bloodshot eyes.

Employers assuming California law is the most employee-friendly would be mistaken with regard to marijuana. Multi-state employers must ensure their policies comply with other states’ laws that are more protective of employees’ marijuana use. Protections for employees with doctors’ recommendations for medical marijuana, in particular, vary from state-to-state. As just one example, the Maine Medical Marijuana Act provides that an employee cannot be discriminated against “solely for that person’s status as a qualifying patient,” unless failing to do so would cause the employer to be in violation of federal law or lose federal funding.

Next Steps

Employers should consider how the Act will affect the workplace and their employees’ performance. Consider training managers to focus on performance and conduct, rather than trying to discern who is a marijuana user.

Additionally, employees may well erroneously assume that the Act creates a license to “work-and-bake.” Employers should update policies to specifically address management’s view of recreational marijuana use, including the use of “edible” products during breaks or meal periods. Employers also may wish to distinguish between jobs that high-risk, such as those involving driving or the operation of equipment.

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