California may be the next state to join Alaska, Colorado, the District of Columbia, Oregon and Washington in legalizing adult recreational use of marijuana. On November 8, 2016, California voters will decide whether to approve Proposition 64, the “Control, Regulate and Tax Adult Use of Marijuana Act” (the Act), which would legalize recreational marijuana for individuals over the age of 21. If voters approve the Act, however, it is not expected to interfere with the right or ability of California employers to implement and enforce their workplace drug policies, including drug-testing policies.
Currently, California has a medical marijuana law and has decriminalized the possession of one ounce or less of marijuana. If approved, Proposition 64 would, among many other things:
- Legalize recreational marijuana for adults over the age of 21.
- Allow adults to possess, process, transport, purchase, obtain or give away to adults age 21 or over up to one ounce (28.5 grams) of marijuana or up to 8 grams of concentrated cannabis.
- Allow adults to possess, plant, cultivate, harvest, dry or process up to six living marijuana plants for recreational use.
Proposition 64 will not impact the right of a California employer to prohibit marijuana use nor will it require an employer to accommodate such use. The Act expressly states in the “Purpose and Intent” section that it is the intent of the Act to “allow public and private employers to enact and enforce workplace policies pertaining to marijuana.” Moreover, the Act states that it will not be 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.
Marijuana remains a Schedule I drug under the federal Controlled Substances Act. As a result, and consistent with a 2008 California Supreme Court decision1 upholding the right of an employer not to hire an applicant who tested positive for marijuana recommended by his physician, employers can continue to rely on federal law and enforce their workplace substance abuse policies. In the meantime, because recent polls suggest that Californians are likely to vote in favor of the recreational marijuana law, employers may want to consider reviewing and updating their substance abuse policies, including their drug-testing policies, to ensure they are clear as to their expectations of employee marijuana use.