marijuana_legal_gavelThis post was authored by Megan Lewis.

Twenty years ago, California became the first state to legalize medical marijuana.  Since then, numerous other states have legalized marijuana for medicinal use.  What about more general legalization? Though a previous attempt in 2010 failed, a recent poll indicates that California is in fact poised to join the small group of states, including California’s west coast neighbors Washington and Oregon, that have legalized marijuana for recreational use.

If it passes on November 8, Proposition 64 (also known as the “Adult Use of Marijuana Act”) would, among other things:

  • Legalize the recreational use of marijuana for adults age 21 years or older;
  • Legalize possession of up to one ounce of marijuana or up to 8 grams of concentrated cannabis for adults age 21 or over; and
  • Allow the State of California to regulate and tax the sale of marijuana for recreational use.

You can see the full text of Proposition 64 here.

However, Proposition 64 would also leave significant restrictions on recreational marijuana use in place.  For example, smoking marijuana would still be prohibited while driving and anywhere smoking tobacco is prohibited.

If Proposition 64 passes, Californians will be able to legally possess and smoke recreational marijuana virtually immediately (though other elements of the law will take longer to implement).  Keep reading for answers to questions you may have about what impact Proposition 64 may have on your agency if it passes on Election Day.

If recreational marijuana is legal, can my agency still require a drug-free workplace?

YES!  Proposition 64 explicitly “allow[s] public and private employers to enact and enforce workplace policies pertaining to marijuana.”  This is critical language that was included in Proposition 64 in order to ensure that employers are able to maintain or create their own policies regarding their employees’ marijuana use.

Although the possession and recreational use of marijuana would be legal, it does not follow that employers would be required to allow employees to either possess or use it in the workplace.  Alcohol is legal, but most employers prohibit the consumption of alcohol in the workplace and/or during work hours.  The same should be true of marijuana.  Given the likelihood that this proposition is going to pass, agencies should examine their policies as soon as possible to determine whether they need to be updated in order to explicitly state the agency’s expectations regarding the possession and use of marijuana at work.

Even if an employee has a prescription?

It appears so.  However, the reigning California case on this issue (Ross v. RagingWire Telecommunications, Inc.) may be vulnerable if marijuana is legalized in California.

In the Ross case, the California Supreme Court held that employers are not required to accommodate an employee’s use of marijuana, even if the marijuana was recommended by a health care professional.  The Court noted that, although the Compassionate Use Act of 1996 prohibits people who use marijuana under the care of a physician from being charged criminally, the Act does not grant marijuana the same status as a legal prescription drug.  (Health & Safety Code section 11362.5) Similarly, the Court reasoned that, since the California Fair Employment and Housing Act (“FEHA”) does not require employers to accommodate illegal drug use, the employer could lawfully terminate the employee for using medical marijuana.  The Court further stated that marijuana cannot be “completely legalize[d] for medical purposes” because it is illegal under federal law.  (Government Code section 12940 et seq.)

Though Ross will continue to be good law if Proposition 64 passes, based on the Court’s reasoning, it is very possible that a court examining identical facts could come to a different conclusion if marijuana becomes legal in California.  The two statutes discussed above, the Compassionate Use Act and the FEHA, are state laws.  Therefore, if marijuana were legal in California, a court could determine that medicinal marijuana does now have the same status as other prescription drugs and/or that the FEHA does require accommodation of medical marijuana use because it no longer constitutes illegal drug use.  This change, of course, is particularly likely in an employee-friendly state like California.

On the other hand, even if Proposition 64 passes, marijuana will continue to be designated a Schedule I drug under the federal Controlled Substances Act, which means that the use and possession of marijuana will remain illegal under federal law (though the Department of Justice established in a 2013 memorandum to prosecutors that prosecuting state medical marijuana cases is not a priority).  A court could point to the federal law and maintain that the applicability of the Compassionate Use Act and the FEHA are limited.

Speculation aside, there is no language in Proposition 64 that would change the status quo with respect to accommodating medical marijuana use.  Any changes will likely be established through litigation on these issues.

If recreational marijuana is legal, can my agency prohibit employees from using marijuana while off-duty?

Employees of public agencies have a constitutional right to privacy with respect to their off-duty conduct unless such conduct has a nexus to their employment.

For that reason, courts have usually upheld random drug testing of employees in safety-sensitive positions but invalidated random testing of other employees.  However, the law in this area is still evolving, and employers should consult with legal counsel before implementing any policy that prohibits off-duty marijuana use and/or establishes random drug-testing of employees.