Back in 2010, California voters rejected Proposition 19 which, if passed, would have legalized recreational use of marijuana.  Now that Colorado and Washington recently passed legislation legalizing marijuana for recreational use, you can bet that backers of California’s defeated initiative will likely mount another legalization campaign.  If recreational use of marijuana is legalized in California, California employers will face a host of potential issues.

In particular, one of the more controversial components of Proposition 19 was that it created a new protected class of individuals – it potentially gave marijuana users a protected right to consume marijuana without repercussions to employment.  The initiative stated that “no person shall be punished, fined, discriminated against, or be denied any right or privilege for lawfully engaging in any conduct permitted” by the act.  Future renditions of this initiative may contain similar language and, if so, employers will be required to circumvent another minefield.  Employers may be required to allow employees to consume marijuana at work during their breaks.  And, if this happens, employers may not be permitted to terminate an employee if he/she decides to do so.

However, what happens when an employee constantly smokes marijuana during his/her breaks and repeatedly returns to work with the munchies, glassy eyes and is laughing uncontrollably to such a degree that he/she cannot perform essential job duties?  If the employee fails to follow company policy or is not performing adequately and if the employer has diligently and properly documented the employee’s personnel file and has documented legitimate, non-discriminatory reasons for disciplinary actions against the employee, the employer can lawfully discipline or terminate the employee – as long as the decision to terminate or discipline is not based upon a discriminatory reason.

Another potential problem is that any proposed new initiative may protect employees who use medical marijuana and allow such employees to be characterized as having a disability.  If that is the case, then an employer may be required to reasonably accommodate such employees.

Legalizing recreational use of marijuana will create a number of pitfalls for California employers.  Employers must become aware of the impact of any proposed new legislation and treat this potentially new protected class with the same seriousness as members of existing protected classes.