Voters will have the opportunity this coming November to determine whether California joins a growing number of states that have legalized recreational marijuana. If so, what would this mean for employers?

On June 28, 2016, California Secretary of State Alex Padilla confirmed that the measure titled “Control, Regulate and Tax Adult Use of Marijuana Act” is eligible for the November 8, 2016 general election ballot. The Secretary of State subsequently designated the measure as Proposition 64.

Summary of the California Initiative

Proposition 64 proposes to legalize recreational marijuana for individuals over the age of 21. It would allow adults to possess, transport, and purchase up to one ounce of marijuana and grow up to six plants for recreational use.

The initiative would regulate the commercial cultivation, distribution, and sale of marijuana. This would be accomplished by the creation of the Bureau of Marijuana Control, a new department that would be under the Department of Consumer Affairs. The department would license and regulate commercial enterprises.

Proposition 64 allows for local governments to ban marijuana businesses or subject them to zoning and permit requirements. The proposition would prohibit smoking and ingesting marijuana products in public, except at certain licensed retail establishments in accordance with a proposed new section to the Business and Professions Code, Section 26200. Driving while impaired by marijuana would remain illegal.

Section 26200 of the proposed act specifies that a local jurisdiction may allow marijuana use on the premises of licensed retailers if said premises are restricted to individuals 21 and over and are not visible from any public place or non-age restricted area. Current laws dictating that it is an act of negligence or professional malpractice to perform certain tasks under the influence of marijuana would remain intact.

Language Addressing Workplace Rights

Proposition 64 purports to leave employers’ workplace rights undisturbed. The proposed act states that its purpose and intent, among other objectives, is to “[a]llow public and private employers to enact and enforce workplace policies pertaining to marijuana.” The proposed act also states that nothing in it shall be construed or 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.

Further, the act would not require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace. The proposed act also states that it would not affect an employers’ ability to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.

The act also makes reference to workplace safety, without providing any solutions. Instead, the act’s authors created a placeholder for future regulation: the new section 147.6 of the labor code would provide for an advisory committee to evaluate the need for industry-specific regulations.

What Laws Are Already on the Books in California?

Proposition 215 (the Compassionate Use Act of 1996) is a California law concerning the medical use of marijuana. Patients and defined caregivers who possess or cultivate marijuana with a doctor’s prescription are exempt from the state’s criminal laws that otherwise prohibit possession or cultivation of marijuana. The law also grants immunity to doctors who issue such prescriptions.

In 2010, the governor signed Senate Bill 1449. That law essentially decriminalizes possession of one ounce or less of marijuana. According to the law, individuals may not be sentenced to jail or put on probation for possessing one ounce or less of marijuana, and fines for such possession may not exceed $100. Such possession, according to the law, is the equivalent of an infraction, like a driving offense resulting in a traffic ticket.

A prior effort to legalize recreational marijuana use failed in 2010. California voters rejected Proposition 19 by a narrow margin. The current initiative stands a better chance of success. Recent polls indicate that approximately 60 percent of likely California voters favor legalization.

What Is the Current Nationwide Status of Legalization?

Currently, recreational use of marijuana is legal in Alaska, Oregon, Washington, Colorado and the District of Columbia. A number of states have legalized medical marijuana.

Seven other states have also added similar measures to their November ballots, including Arkansas, Arizona, Maine, Missouri, Massachusetts, Nevada, and Florida. 

What About Federal Law?

At the federal level, marijuana is regulated by the Controlled Substances Act (21 U.S.C. § 811). That law makes any use of marijuana illegal. Federal law characterizes marijuana as it does any other controlled substance, such as cocaine and heroin. The law places this drug on “Schedule I,” meaning that it is considered highly addictive and does not have a medical value.

The federal government has decided not to enforce most of the act. In a policy updated on August 29, 2013, the U.S. Department of Justice announced that it is generally taking a hands-off approach, with the exception of a few areas, such as distribution to minors and organized crime.

Is There a Right to Be Stoned at Work?

An employer’s primary concern is maintaining a safe and productive work environment. The use of drugs and alcohol can interfere with these legitimate concerns in obvious ways. So far, no laws have prohibited an employer from enforcing workplace rules prohibiting using, possessing, or being under the influence of alcohol and/or controlled substances, including marijuana.

In California, employers may choose to rely on federal law, even if the government isn’t enforcing it. When medical marijuana became legalized in California, the California Supreme Court dealt with the issue of  whether employers could “discriminate” against employees who tested positive for marijuana. In Ross v. RagingWire, an employee was discharged after he tested positive for marijuana. The employee had a doctor’s note indicating he was allowed to use marijuana for back pain. The court held the employer was free to discharge the employee based on his marijuana use despite the legalization of medical marijuana. The court reasoned that although medical marijuana use was legal in California, it was still illegal under federal law. Thus, the employer did not violate the Fair Employment and Housing Act by discharging the employee. 

Next Steps

Considering recent polls, the legalization of recreational marijuana in California is likely. If Proposition 64 passes, it would become effective at the beginning of 2017, barring any legal challenges. Given that employers will retain the right to enforce workplace drug policies, they may want to review and update those policies in light of the new legal landscape. Employers may also want to revisit their drug testing policies. Moreover, renewed efforts to ensure workplace safety may become paramount, particularly in industrial settings. Worker efficiency, health, and well-being will be of no less concern.