Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by D. Gregory Valenza | The Daily Journal | Sep 24, 2010

Proposition 19, called the “Regulate, Control and Tax Cannabis Act of 2010,” will be on the ballot this November. The initiative, among other things, would legalize adult possession and personal consumption of small quantities of marijuana.

Marijuana legalization is a hotly debated issue. This column is about employment law, not the merits of cannabis consumption. From an employment law perspective, Proposition 19 will affect policies, procedures, and decisions regarding marijuana use by an applicant and employee. The ballot measure’s proponents argue to the contrary. But they are just blowing smoke.

First there was Proposition 215, the Compassionate Use Act of 1996. That ballot measure in essence decriminalized “medicinal” use of marijuana under narrow conditions. It did so by creating an “affirmative defense” to certain marijuana-related criminal charges.

Proposition 215 did not address employment-related issues. The state Supreme Court in Ross v. Ragingwire Telecommunications Inc., 42 Cal.4th 920 (2008), decided that California employers have no duty to accommodate applicants’ use of marijuana, even medicinal use protected under Proposition 215. The Court decided that neither the Fair Employment and Housing Act nor public policy required an employer to ignore an applicant’s positive drug test as a reasonable accommodation of an alleged disability.

Proposition 19 dispenses with the “medicinal” issue. The proposed measure authorizes “any person 21 years of age or older” to “possess, process, share, or transport not more than one ounce of cannabis, solely for that individual’s personal consumption, and not for sale.” The term “personal consumption” will “include but is not limited to possession and consumption in any form, of cannabis in a residence or other non-public place,” or in venues licensed to permit cannabis consumption (i.e. a shop licensed for pot smoking.)

Unlike Proposition 215, the new proposed initiative directly addresses employment. Under Proposition 19, Section 11304 of the Health & Safety Code would provide: “No person shall be…discriminated against, or be denied any right or privilege for lawfully engaging in any conduct permitted by this Act…. Provided however, that the existing right of an employer to address consumption that actually impairs job performance by an employee shall not be affected.”

What would become of Ross? Denial of “reasonable accommodation” is a form of “discrimination,” which Proposition 19 prohibits. Reasonable accommodation in some circumstances includes permitting employees to work while taking prescription drugs that otherwise might disqualify an employee. So, unless the employer can prove “undue hardship” (such as by showing that other laws prohibit employees from working under the influence), or that the accommodation poses a “direct threat” to health and safety, applicants and employees will argue the Fair Employment and Housing Act requires employees to accommodate “lawful” marijuana use. Employers still may argue that federal law renders any such accommodation unreasonable. But if that argument fails, the initiative likely will limit or altogether abrogate Ross.

Proposition 19 will have a far greater effect than the “reasonable accommodation” issue. The authors’ stated intent is to equate the use of marijuana with alcohol. But the proposed initiative provides marijuana users with workplace protection that tipplers simply do not enjoy.

First, there is no law protecting current alcohol users from “discrimination” or the denial of a “right or privilege.” For example, consider an employee who comes into work smelling of bourbon, admits to the boss he had a beer at lunch, or brags about a hangover. In each of these cases, nothing legally precludes the employer from discharging that employee. Likewise, there is nothing prohibiting an employer from refusing to hire an applicant who admits even to social drinking. It is true that alcoholism may be considered a protected disability under anti-discrimination law, but the current use of alcohol at work is not, ipso facto, alcoholism.

The proposed initiative would not allow an employer to take action in any of the above examples (unless another law prohibited working under the influence because the activity is “dangerous.”). That is because Proposition 19 merely protects employers’ right to “address” (i.e., discharge or discipline) “consumption that actually impairs job performance.”

A manager who merely smells marijuana on an employee’s clothes will not be enough. In fact, an employee probably may smoke marijuana before work, on break, at lunch, or whenever he or she pleases, as long as the employee’s “actual job performance” is not “impaired.”

That standard will lead to workplace disputes. Employers and employees, for example, may well disagree on whether the employees’ performance was “actually impaired.” And then they may argue about whether the marijuana (as opposed to a bad day, negligence, etc.) caused the poor performance. Some managers and workers lawfully may resolve these disagreements over a bong hit and a pizza. But the disputes in most cases will be resolved the old fashioned way: litigation.

An employer lawfully may refuse to hire an applicant whose breath reeks of booze, who has dilated pupils and bloodshot eyes, or even whose jacket smells like cigarette smoke. But if the applicant’s clothes smell like marijuana due to “personal consumption,” that applicant is in a new protected classification.

An applicant’s “actual” impairment or performance obviously cannot be measured before work begins. Therefore, denying employment to someone who interviews for a job under the influence of marijuana – even admittedly – likely will be unlawful. Drug testing applicants for marijuana use (or even asking them about it) may result in claims of unlawful “discrimination.” As such, employers will forego applicant testing or questions regarding marijuana.

In sum, if Proposition 19 is passed, employers must both train management to comply, and change a variety of policies and procedures. First and foremost, management will be required to understand what marijuana use is protected and what is not. In addition to working under the influence of marijuana that causes “actual impairment,” the proposed law does not “affect, limit or amend any statute that forbids impairment while engaging in dangerous activities such as driving, or that penalizes bringing cannabis to a school enrolling pupils in any grade from kindergarten through 12, inclusive.” Apart from the reference to driving, there is no definition of “dangerous activities,” unfortunately.

Drug testing policies and procedures must be amended. Applicant drug testing for marijuana’s metabolites likely will be banned. Employers who drug test based on “reasonable suspicion” will be required to amend policies to ensure that the “reasonable suspicion” of marijuana use includes not only consumption but also actual impairment. Of course, where federal or state law require drug testing for marijuana metabolites (such as federal drug testing regulations applicable to certain truck drivers), Proposition 19 may not protect covered employees.

Employers also remain bound by law to ensure a safe workplace. The common slang term for “under the influence of cannabis” is “stoned,” not “vigilant.” An employee under the influence of marijuana may not reveal an “actual impairment” until he drops a tray of hot soup on a co-worker, or fails to lock the back door of a jewelry shop at closing time. Bummer.

Employers that do not have “reasonable suspicion” drug testing policies therefore may wish to consider implementing them. Otherwise, injured third parties or employees may claim the employer did not do enough to protect them from harm.

If the initiative passes, management will have to enhance safety training to address the new workforce. Employers likely will have to train management and workers regarding what constitutes discrimination against marijuana users. Equal employment opportunity policies and procedures must be updated as well.

Finally, the proposed law does nothing to address the reality that marijuana remains a controlled substance under federal law. The federal government and California have in place “Drug-Free Workplace Acts,” which apply to certain federal and state contractors. Each requires employers to ensure a workplace free of employees working under the influence of controlled substances.