By Roger M. Mason, Esq. | Sweeney, Mason, Wilson & Bosomworth
In November of 2016, California voters passed Proposition 64, the Adult Use of Marijuana Act, legalizing the possession and recreational use of marijuana by adults. Many California employers previously implemented and enforced drug-free workplace policies, including testing applicants and employees in certain situations. California employers are now questioning how Proposition 64 affects their ability to enforce drug policies in the workplace.
The short answer is that Proposition 64 doesn’t change much. California precedent allows employers to conduct pre-employment drug screening. In Loder v. City of Glendale (1997) 14 Cal. 4th 846, the court determined that California employers may require applicants to pass a drug test as a condition of employment so long as the drug test is administered in a uniform, nondiscriminatory manner. More recently, the California Supreme Court held that California employers may terminate employees who test positive for marijuana even if they hold a prescription obtained pursuant to the terms of California’s Compassionate Use Act. Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal. 4th 920.
Proposition 64 recognizes the need to keep marijuana out of the workplace. It specifically states that it is intended to allow public and private employers to enact and enforce workplace policies pertaining to marijuana. The initiative goes on to state it is not intended to amend, repeal, affect, restrict, or preempt:
The rights and obligations of public and private Employers to maintain a drug and alcohol free workplace or require an Employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growth of marijuana in the workplace, or 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 of federal law.1
California employers should use the passage of Proposition 64 to review existing policies and remind employees that the company maintains a drug-free workplace, will conduct drug testing, and that marijuana remains prohibited despite Proposition 64. Employees should be made aware that testing positive for marijuana on the job will not be tolerated even if pursuant to medical prescription.
While reviewing policies, be aware that OSHA recently issued a final rule revising its Recording and Reporting Occupational Injuries and Illnesses regulation. Although the final rule does not expressly address drug testing, OSHAs commentary warns Employers that mandatory post-accident drug testing programs may be considered a form of intimidation that discourages employees from reporting workplace injuries. In order to avoid potential penalties from OSHA, California employers are advised to revise their drug testing policies to avoid automatic post-injury drug testing. Rather, policies should limit testing to situations when there is a reasonable possibility that drug use likely contributed to the accident, and only use tests that accurately determine actual impairment at the time of the accident, rather than merely identifying some drug use in the recent past.
We encourage you to review your approach internally among your management team and with legal counsel to draft a policy that is specific to your organizations industry challenges and culture.
1 The Federal Controlled Substances Act still defines marijuana as an illegal Schedule I drug – 21 U.S.C. 812(c).