Many Californians celebrated the arrival of 2018 standing for hours in long lines at their local pot dispensary. That’s because the 2016 law legalizing recreational marijuana in California — known as Proposition 64 or the Adult Use of Marijuana Act (AUMA) — officially became effective on January 1, 2018.
On that date, residents of municipalities that had completed their licensure and regulation process (like Berkeley, Oakland, San Jose, and San Diego) were free to buy, posses, and use marijuana. Residents of other municipalities (like San Francisco and Los Angeles), however, will have to wait a week or two as politicians and regulators finalize the licensure and permit processes in those municipalities.
Now that the dispensary lines have died down, and the first legal high has worn off, I am getting lots of calls and emails asking what this means for employers, employees, and workplaces in California.
What Does AUMA Allow?
California’s new law legalizes recreational marijuana for individuals over the age of 21. It allows adults to possess, transport, and purchase up to 1 ounce of marijuana and to grow up to 6 plants for recreational use. The new law prohibits smoking marijuana and ingesting marijuana-based edibles in public. The new law does not change California’s strict driving-under-the-influence (DUI) laws; thus, driving while impaired by marijuana and/or driving with an open container in the vehicle remain illegal in California even after the passage of AUMA.
AUMA’s Impact on California Workplaces
California’s new law similarly does not change the workplace rights of employers and employees. Employers are still free to enact and enforce workplace policies that restrict or prohibit the use of (or being under the influence of) marijuana while at work — just as they are free to do so with policies that restrict or prohibit the use of (or being under the influence of) alcohol and prescription drugs, both of which are also legal in the state. In fact, the AUMA specifically states that it “shall [not] be 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.”
What About Zero Tolerance or Other Policies?
Even after AUMA, employers are still free to enact and enforce “zero tolerance” drug policies, including marijuana, for their workplaces. Employers are still required by California law to provide a safe and healthy work environment for their employees. Thus, employers can lawfully enact policies that announce a “zero tolerance” for employees who report to work impaired under any substance, legal or not.
In other words, except for issues involving potential disabilities and the medical use of marijuana (see below), employers should look at recreational marijuana just as they do alcohol. If there is a legitimate work-related need for that employer to restrict or limit an employee’s use of (legal) alcohol at work, or that employee reporting to work under the influence of (legal) alcohol, that employer can adopt a similar policy with respect to (legal) marijuana.
Similarly, if a California employer has employees in “safety sensitive” positions, and if that employer’s local jurisdiction already allows employers to perform drug testing for those employees if the employer has a “reasonable suspicion” of drug use while at work, then AUMA would not change anything. Employers after AUMA would still be free to conduct lawful drug testing following a “reasonable suspicion” just as they were before.
However, employers in a municipality that allows for more broad drug testing — for example, to look for the presence of a substance in the employee’s system from any prior use, even private use at home — would need to proceed very carefully now in the aftermath of AUMA. That’s because California law has long prohibited employers from making employment decisions based on an employee’s lawful, off-duty conduct. See Cal. Lab. Code §§ 96(k) and 98.6. If your pre-employment drug test does not check for the applicant’s prior, private, lawful use of alcohol (which it never does), then why should it be checking for the employee’s prior, private, lawful use of marijuana? That oversimplifies the matter a bit, but it makes the point that the issues get murkier in this situation.
But What About Medical Marijuana?
If you are an employer and one of your employees comes to you and reveals that s/he uses medical marijuana for a physical or mental condition, then that employee could be “disabled” and thus be entitled to a “reasonable accommodation” from the employer. The disabled employee would also be protected from discrimination and harassment under California law.
Given that federal law still considers marijuana an illegal Schedule I narcotic, and given a 2008 California Supreme Court decision entitled Ross v. RagingWire Telecommunications Inc., 42 Cal. 4th 920 (holding that employers still have the right to terminate employees for marijuana use, regardless of their medical status), I do not see California employers being required to allow the use of marijuana at work as a “reasonable accommodation.” For now, that is a proverbial bridge too far, even for liberal California.
The employee would be legally allowed to use marijuana at home, while off-duty. And the employer would want to be careful about discriminating against or taking any other adverse employment action against that disabled employee based on any drug test or other information that reveals that employee’s private, off-duty use of a lawful medicine.
[Note: This is one of many reasons I counsel clients to avoid getting into their employees’ personal lives. As an employer, almost always, the less you know…the better. If you don’t know that your employee has a disability, then you have nothing to accommodate. If you don’t know that your employee uses medical marijuana, you can’t discriminate against him/her on that basis. Employers who insist on treating their employees “like a family” ignore this advice and, almost always, create more liability and risks for themselves. Because now the “family” has shared everything among everyone, thus the employer is now on notice, and thus the employer now has legal obligations that it otherwise would not have had.]
In The Real World…
As my clients know, I’m a huge fan of confronting life in the “real world.” By that I mean that we have to take a look at a statute, law, regulation, or other right or obligation in the real world in which it exists and see how it plays out — in reality — for all the stakeholders involved. Is it a hard rule in the real world? Is it enforced? What’s the real world risk, and how likely is it this risk will ever arise for you in your particular situation? My clients exist in the real world, so I make sure that we assess all of these sorts of questions, too, when we discuss “the law.”
In this context, the “real world” is a place where lots (and lots and lots) of competent, high-functioning people use marijuana away from work. Thus, far from drafting workplace policies that are restricting or prohibiting marijuana’s use, some of my employer clients — especially in industries like technology that cater to younger and/or more liberal employees and entrepreneurs — are drafting more progressive drug use policies. They are revising their workplace policies to more openly acknowledge the private, off-duty, lawful use of (now legal) marijuana. For these employers, in these industries, they feel that these revisions are required to recruit and retain the younger, more liberal employees that are critical to their business success.
Most of my employer clients aren’t going that far, but some are still reviewing and revising their employment policies to ensure that (legal) marijuana is treated no differently in tone or context than (legal) alcohol.
For some other employer clients, they are doing nothing. They are waiting for further guidance from the California Supreme Court, the U.S. Department of Justice, and the U.S. Supreme Court before they make any policy statements one way or another about marijuana in the workplace.
What Should Employers Do Now?
How your company should respond to the new reality of legal marijuana in California depends, first and foremost, on the law. And I’ve given you a broad and general overview of that here. But, beyond that, what you do — and how you communicate it to your workforce — will depend on the politics of your local jurisdiction, the progressiveness or conservatism of your particular city/county and your particular industry, the types of employees your company wants to recruit and retain, and the types of customers and clients your company serves.
Oh, and yes — it will have depend also on what type of administration exists in Washington, D.C., and specifically whether that administration is hostile (or not) to marijuana generally and those states who have loosened their laws.
Remember that the U.S. Constitution makes it clear that federal law is the “supreme” law of the land, and that states cannot enact laws that conflict with federal law. Well…isn’t that what’s happening here? Yes. Hasn’t California just enacted a law that directly conflicts with federal law? You bet. Will California’s law survive? Who knows. All I can say for now is that, with our current President and his arch-conservative Attorney General, it’s going to make for an interesting few years here in liberal California, especially as it pertains to marijuana.
You can read the full text of California’s AUMA here.
You can read the memorandum that U.S. Attorney General Jeff Sessions wrote to U.S. federal prosecutors in response to the new California law here.
You can read the California Supreme Court’s decision in Ross v. RagingWire Telecommunications Inc. here.