With the passing of Prop 64, California joins the growing list of states legalizing marijuana for recreational purposes. But what does the passage of Prop 64 mean for California employers seeking to maintain a drug-free workplace? Confusion.
Prop 64 may mean victory for those seeking freer use of a federally controlled substance, but for California employers, the passing of Prop 64 means a slog through what has become a hazy gray area of the law. As enacted, Prop 64 makes very clear that it will not interfere with employer rights/obligations to create drug free workplaces nor affect policies prohibiting use of drugs in the workplace. Employers will not be required to permit or accommodate marijuana drug use as a reasonable accommodation assuring employers the ability to comply with state and federal laws. Great, right? Well, that remains to be seen.
Protections afforded employers within Prop 64 remain in accordance with the California Supreme Court’s holding in Ross vs. RagingWire Telecommunications Inc. (2008) 42 Cal.4th 920. (Employers may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions – even in circumstances where screening establishes use of marijuana legally obtained in accordance with the Compassionate Use Act. Employers not required to permit employee medical marijuana use as a reasonable accommodation.) Which is somewhat helpful, but once the employer/employee relationship is established, on the job drug testing remains a tricky area to navigate. For the average white/pink-collar employer, reasonable suspicion, in a good many cases, will not rise to a level sufficient to warrant its use as a fallback for adverse employment actions taken against an employee suspected of drug use in the workplace.
Regulations and limitations relating to Prop 64 are slowly making their way through the legislative process with some deadlines set for January 2018. And, in relatively short-order, civil actions will likely crop up (pun intended!) testing the limits of employer/employee interactions concerning the impact of recreational marijuana on the workplace.
But in the meantime there remains little guidance for employers, especially those faced with potential ‘gray area’ situations such as the current employee who returns to work after using their rest or meal period to ingest or inhale their prescribed dose of medical marijuana. In these and other similar situations employers are left with more questions than answers: Is this different than an employee who uses the same opportunity to ingest a prescribed low-dose narcotic for pain control or an over-the-counter medication? Is this the same as an employee who imbibes a cocktail or glass of wine at lunch and then returns to work? In most circumstances it just depends. ‘No tolerance’ employers likely will have less consternation on how to handle these issues, but the average employer might have a tougher time; particularly where an existing drug and alcohol policy includes a ‘medically prescribed’ exception.
For the foreseeable future employers are best advised to review existing drug and alcohol policies (or implement comprehensive policies) outlining company expectations when it comes to maintaining a drug free work environment. Keeping in mind, when it comes to marijuana use in the workplace (and its recreational use aftereffects) – much like alcohol use in the workplace – most issues will likely be performance based.
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