It May Be Legal, But Proceed With Caution

In the November 2016 election, California joined an increasing number of states in legalizing marijuana. Although California law previously permitted use of marijuana medicinally, Proposition 64 made it legal for individuals over the age of 21 to use and grow marijuana recreationally as well. The new law took effect on November 9, 2016. Now many employers are faced with the difficult task of not only addressing marijuana use in the workplace, but also how to address employees who test positive for marijuana during required employment or preemployment drug testing. The issue is particularly thorny as marijuana remains banned under federal law.

Although marijuana use is now considered “legal” under California law, Proposition 64 allows employers to enact and enforce workplace policies related to marijuana, and employers are still permitted to test and fire employees for marijuana use. In fact, Proposition 64 essentially codified the 2008 California Supreme Court decision, Ross v. Raging Wire Telecommunications, Inc. (2008) 42 Cal.4th 920, which held that employers are not required to accommodate an employee’s medicinal marijuana use, despite its legality. The Court specifically held that “California’s voters merely exempted medical users and their primary caregivers from criminal liability under two specifically designated state statutes. Nothing in the text or history of the Compassionate Use Act [legalizing the medical use of marijuana] suggests that voters intended the measure to address the respective rights and duties of employers and employees.” For now, it is clear that employers remain within their rights to terminate employees for marijuana use in the workplace.

Despite the language of Proposition 64 and the Supreme Court’s holding in Ross, many employees may still incorrectly believe marijuana use is permitted under any circumstances. Due to this belief and likely increased marijuana use, employers will be forced to reevaluate their employment policies and confront this issue over the coming months and years, particularly in regard to drug testing. Since marijuana remains in one’s system much longer than do alcohol and other drugs, an individual may test positive for marijuana during routine drug testing days after the use of the drug. In this scenario, Proposition 64 permits an employer to terminate the employee even though the employee may have “legally” used marijuana during his or her off hours.

Based on the rapidly evolving laws, employers must decide how to address issues related to marijuana use, including whether to continue testing and terminating those employees who test positive for marijuana. At a minimum, it is important for employers to craft policies regarding drug use and testing that clearly inform employees of the employer’s expectations and create a safe and productive work environment.