Have California’s Laws Gone to Pot?

Katy RaytisAs most are aware, last November voters approved Proposition 64 (the “Control, Regulate, and Tax Adult Use of Marijuana Act”) which legalized the recreational use of marijuana in California.  That might sound really groovy, but California employees shouldn’t light up those doobies just yet.

Although Proposition 64 legalizes certain marijuana use, it expressly allows California employers to continue to enforce drug-free workplace policies.  As the statute reads, “Nothing in this article shall require any accommodation of any medical use of marijuana on the property or premises of any place of employment or during the hours of employment…”  This means that even though pot may be legal, employers don’t have to permit it in the workplace.

So what should California employers do moving forward?

First, it is imperative that the company have a drug-free workplace policy in effect.  In that policy, employers should specify that the Company will abide by federal law, rather than state law, with regard to what substances are “illegal.”  Under the federal Controlled Substances Act, marijuana remains an illegal drug, and employers are permitted to follow federal law on this issue.  This practice was condoned by the California Supreme Court in the 2008 case of Ross v. RagingWire.  There, the court held that California employers do not need to accommodate the use of marijuana as may be permitted by the state’s Compassionate Use Act (ie, the medical marijuana law).  In addition to specifically referencing the federal prohibition on marijuana use, the drug-free workplace policy should clarify that employees are prohibited from working with any detectable level of an illegal substance in their system (regardless of whether or not they are currently under the influence).

Employers must also ensure that they have a drug testing policy that is legally compliant and that has been communicated to all employees.  The drug testing policy should have a narrowly-tailored purpose, a description of prohibited behaviors, an outline of testing parameters and consequences, a confidentiality provision, and information related to employee assistance options (including protections that apply to employees who voluntarily seek rehabilitation).  Employers must be careful designating when testing is appropriate and who may be tested.  For example, random drug testing should only be conducted for employees who are assigned to safety-sensitive positions.  Likewise, a policy that requires automatic post-accident drug testing may run afoul of recent OSHA guidance since it could deter employees from reporting accidents.  Employers should consult with legal counsel or with drug testing experts when generating testing policies.

Finally, employers must ensure that workplace drug policies are clearly communicated and fully understood, by both supervisors and employees.  Supervisors should be trained in recognizing behavior that might support “reasonable suspicion” testing and should be instructed on how to respond under such circumstances.  Likewise, employees should be educated so that they understand that the legalization of marijuana does not mean they can light up during off-duty time without consequence.

Having to adjust to an ever-changing legal landscape is nothing new for California employers.  However, employers who carefully review their drug-free workplace and testing policies, train supervisors, and educate employees will find that the passage of Proposition 64 does not mean that they are going to get left HIGH and dry in the workplace.  At least that’s one groovy thing about Proposition 64.