Last year, California voters passed Proposition 64 (“Prop 64”), making the recreational use and sale of marijuana generally permissible under California law. Specifically, Prop 64 legalizes the use of marijuana for non-medical reasons by adults age 21 and over. While Prop 64 made the use of recreational marijuana legal under state law as of November 9, 2016, it only directs the State of California to begin issuing business licenses for the sale of recreational marijuana beginning January 1, 2018. Federal law still prohibits possession of marijuana, whether for recreational or medicinal purposes.
On January 1, 2018, the first State-issued licenses will take effect for sales to recreational users. However, the new law provides cities and counties the authority to regulate recreational marijuana businesses, including by banning such businesses in their jurisdictions altogether. Thus, the effectiveness of state licenses may vary from region to region within the state. Several major California cities, including Los Angeles, San Francisco, San Diego, Oakland, and San Jose have already approved regulations permitting sales within their jurisdictions. Other cities, including Riverside, Fresno, Bakersfield, Pasadena, and Anaheim have elected to prohibit recreational sales, either permanently or temporarily.
While cities and counties may regulate the sale of recreational marijuana, regulating its usage is within the State’s purview. This appears to means that a resident of a city that bans the sale of recreational marijuana may not be able to buy (or even grow) the product within his or her home city, but he or she will be able to buy the product elsewhere and consume it in a private home within that city’s boundaries (See Health & Safety Code sections 11362.1 and 11362.2(b)).
Given the ability of a private citizen, age 21 and older, to now legally use recreational marijuana throughout the State, Prop 64 raises many issues for employers that currently implement drug free work place policies and drug testing programs.
Does Prop 64 Change an Employer’s Ability to Regulate Marijuana Usage in the Workplace?
Proposition 64 does not change the status quo regarding the enforcement of drug free workplace policies and testing programs. In fact, the language in Prop 64 specifically provides that Prop 64’s amendments shall not
[B]e construed or interpreted 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 or federal law.
This critical language was included in Prop 64 in order to ensure that employers are able to maintain or create their own policies regarding their employees’ marijuana use.
Therefore, even after Prop 64’s passage, all employers may still prohibit employees from possessing, using, or being under the influence of drugs, including marijuana, in the workplace, while on the employer’s premises; while operating employer-owned equipment; while driving employer-owned vehicles; when attending functions or events as a representative of the employer; or while in uniform.
Furthermore, “safety sensitive” employees can still be subject to random drug testing, and those testing requirements and potential consequences of positive testing remain unchanged. All other classes of employees continue to be subject to testing based on the “reasonable suspicion” standard, post-accident, or return to duty situations as addressed in many employer policies. The reasonable suspicion standard likewise applies to searches of an employee’s work area. What constitutes reasonable suspicion will depend in part on how that phrase is defined by an employer’s drug testing policy.
Employers should consider reviewing current personnel policies and MOUs to determine whether they need to be updated in order to explicitly state the employer’s expectations regarding the possession and use of marijuana in the workplace. Employers may also want to indicate in such policies that California law does not legalize recreational marijuana for individuals under the age of 21, public consumption of marijuana or driving while under the influence of marijuana.
Do Employers Now Have to Accommodate the Use of Marijuana for Medical Reasons?
Despite changes to state law, federal law remains unchanged. Marijuana is still considered a “Schedule I” drug under the federal Controlled Substances Act. This means that under federal law, including the Americans with Disabilities Act (“ADA”), employers are not required to accommodate “illegal” drug use, including marijuana usage.
While the status of an employer’s obligation to accommodate marijuana usage for medical reasons under state law also appears to remain unchanged following Prop 64’s passage, the controlling California case on this issue, Ross v. RagingWire Telecommunications, Inc., may be vulnerable now that California has legalized recreational marijuana.
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. (Government Code section 12940 et seq.) The Court further stated that marijuana cannot be “completely legalize[d] for medical purposes” because it is illegal under federal law.
Though Ross is still good law even though Prop 64 passed, based on the Court’s reasoning, it is possible that a court examining identical facts could come to a different conclusion based on California’s legalization of marijuana. On the other hand, because marijuana is still designated a Schedule I drug under the federal Controlled Substances Act, a court could point to the federal law and maintain that the applicability of the California Compassionate Use Act and the FEHA are limited
Employers will ultimately have to do a cost benefit analysis if the issue of accommodating an employee’s use of marijuana arises. Absent further guidance from the State or the courts, employers should not have to make such accommodations.
What About Conduct Outside of the Workplace?
The legalization of recreational marijuana under California law may pose potential enforcement challenges when implementing workplace drug policies and conducting drug tests on employees. For example, an employee may test positive for marijuana (i.e., the presence of “THC” in their system) based on off-duty consumption. That employee may argue that despite the test, he or she has compiled with the letter of the employer’s policy because the policy only bans use, possession or being under the influence of marijuana while on the employer’s property or while on duty. In fact, many factors impact whether someone tests positive for marijuana, including the person’s individual metabolism, frequency of use, amount of use, and type of test (urine, blood, hair) used. Many tests are unable to determine when a person consumed marijuana.
Employees generally have a constitutional right to privacy with respect to their off-duty conduct unless such conduct has a nexus to their employment. Whether a court will find a nexus to employment may depend on the particular position at issue. For example, peace officers are held to a higher off-duty standard of behavior than other types of classifications. Employees who come into regular contact with children are often also held to a higher standard.
Employers should review their drug free workplace policies to ensure that they clearly state that an employee may be disciplined for off-duty use under certain circumstances. Such a policy should indicate that off-duty drug use may be subject to discipline if such conduct can be reasonably said to affect an employee’s job duties. When disciplining an employee for such off-duty conduct, however, we recommend that employers discuss such discipline with legal counsel.
Where Do We Go From Here?
LCW will be tracking further guidance arising from Prop 64 and its implementing regulations over the coming year and will provide updates as needed.
If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, Sacramento, or San Diego office.