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California voters passed Proposition 64, the Adult Use of Marijuana Act. Prop 64 legalized the recreational use of marijuana by adults 21 years old and over.

Despite the passage of Proposition 64, smoking or ingesting marijuana in public will remain illegal, as will smoking or ingesting marijuana in places where smoking tobacco is prohibited. Similarly, driving under the influence of marijuana will remain unlawful.

How will this affect the workplace? Employers need not fret, Proposition 64 allows California employers to keep their policies regarding drug free workplaces. Employer policies related to drug possession, use and impairment as well as testing are not compromised with the legalization of marijuana use under Proposition 64.

Workplace Protections Under Proposition 64

Although Proposition 64 legalizes adult recreational use of marijuana, the law provides that it is intended to “allow public and private employers to enact and enforce workplace policies pertaining to marijuana.” The initiative also provides that it should not be interpreted to have the effect of repealing, affecting or restricting:

“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 or federal law.”

These important provisions protecting employer policies regarding the use of marijuana in the workplace were not included in the previous initiative attempting to legalize recreational marijuana use that failed in 2010. With the inclusion of these workplace provisions, Prop. 64 maintains the status quo concerning workplace safety and drug prevention.

Maintaining a Drug Free Workplace

The legalization of recreational marijuana will create a variation between federal and state law. Marijuana will remain an illegal Schedule 1 substance under the federal Controlled Substances Act, therefore, employers may continue to prohibit use, possession and impairment at work, and may continue to test for use, when such testing is otherwise permitted pursuant to California’ employee drug testing laws and regulations.

Drug Testing

Rights and practices maintaining a safe and drug free workplace will continue, this includes drug testing policies. Both state and federal law impose strict drug testing and other related requirements on employers. Employers must continue to comply with these laws.

For example, employers may conduct pre-employment drug testing to maintain a drug-free workplace. If a California employer conducts pre-employment drug testing of all applicants before hire, the employer may deny employment if the drug test comes back positive, even if the applicant was legally using marijuana under the state’s Compassionate Use Act.

Proposition 64 is not intended to change these workplace policies or practices.

Communication is Key

Employers should take a proactive approach in communicating their company’s drug free workplace policy. Take the time to inform employees that marijuana is prohibited in the workplace and impairment on the job will not be tolerated. This would be a good time to redistribute the company’s drug free workplace policy and to train supervisors to reinforce the policy.

If you have any questions regarding Proposition 64’s impact on your business, or maintaining a drug free workplace, please do not hesitate to contact an employment law attorney at Schneiders & Associates, LLP for advice and counsel.

About the Author
Theodore J. Schneider practices in the areas of business and corporate transactions, employment law counseling, municipal and public law, real estate and land use, and homeowner associations. Ted began his legal career in 2002 when he joined the Los Angeles office of Gibson, Dunn & Crutcher, L.L.P. before relocating to Ventura County to join his father in practice.