The Control, Regulate and Tax Adult Use of Marijuana Act: What It Means For California Employers

Employment Law  

November 9, 2016

On November 8, 2016, California legalized the recreational use of marijuana by approving Proposition 64, the “Control, Regulate and Tax Adult Use of Marijuana Act” (the Act).  The recreational use of marijuana for persons aged 21 years and older is now permitted by the state.  Marijuana is permitted in private homes and at businesses licensed for on-site marijuana consumption.  Consumption remains illegal while driving a vehicle.  Possession of up to 28.5 grams of marijuana and eight grams of concentrated marijuana is legal.  An individual is permitted to grow up to six plants within a private home, as long as the area is locked and not visible from a public place.  The Act regulates the cultivation, distribution and sale of marijuana through the Bureau of Marijuana Control.  Also, local governments are empowered to ban or regulate marijuana businesses.  What does the Act mean for California employers and their workplace drug policies?
The Act specifies that its intent is to “allow public and private employers to enact and enforce workplace policies pertaining to marijuana.” (Section 3(r): Purpose and Intent.)  Additionally, the Act states that it will not be interpreted to:
  • Amend, repeal, affect, restrict or preempt 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 (Health & Saf. Code § 11362.45(f).)
Despite the Act’s acknowledgment that employer policies should not be affected, employers should continue to rely on existing federal law to enforce their workplace drug policies.  For example, at the federal level, marijuana remains a banned Schedule I drug under the Controlled Substances Act.  In Ross v. RagingWire Telecomm., Inc. (2008) 42 Cal.4th 920, the California Supreme Court relied on the Controlled Substances Act in upholding an employer’s right not to accommodate an applicant who tested positive for medical marijuana.
Additionally, under the Americans with Disabilities Act (ADA), employers are prohibited from discriminating against individuals on the basis of disability in the employment relationship, including hiring and discharge.  In James v. City of Costa Mesa (9th Cir. 2012) 700 F.3d 394, the Ninth Circuit Court of Appeals held that the ADA does not protect medical marijuana users who claim discrimination based on their marijuana use.  Note, however, that a person who uses medical marijuana may have an underlying condition that rises to the level of a qualifying disability under the ADA.  In short, employers may have to accommodate the user, not the use.
Finally, the Drug-Free Workplace Act of 1988 is a law that requires some federal contractors and all federal grantees to agree that they will provide drug-free workplace as a condition of receiving a contract or grant from a federal agency.  California has a similar law requiring every person or organization awarded a contract or grant from any state agency to provide a drug-free workplace.  Employers are expected to remain compliant with these laws under the Act. (Health & Saf. Code § 11362.45(f).)  Interestingly, the dissenting opinion in RagingWire suggests that an employee’s use of marijuana away from work does not affect an employer’s ability to comply with the drug-free workplace laws: “[D]rug-free workplace laws are not concerned with employees’ possession or use of drugs like marijuana away from the jobsite, and nothing in those laws would prevent an employer that knowingly accepted an employee’s use of marijuana as medical treatment at the employee’s home from obtaining drug-free workplace certification.”
The Act will expand the number of people claiming legal protection for marijuana use.  As such, employers should use the Act as an opportunity to consider amending, reinstating or drafting an updated workplace drug and alcohol policy.  Employers should revisit their drug and alcohol policies in order to ensure that expectations are clear.  Policies covering drug and alcohol use during working hours and on workplace premises should be clearly drafted and communicated to employees so that employee responsibilities are explicit.  A focus on workplace safety and worker efficiency is of considerable importance, especially in industrial settings.
For employers without an existing workplace drug policy, the time to implement one is now.  Maintaining a safe and efficient work environment begins with crafting a clear workplace drug policy that addresses the use of all substances, including marijuana.