California Legalization of Recreational Cannabis: What HR Pros Need to Know

The passage of California’s Proposition 64 in 2016 legalized recreational marijuana use for people aged 21 and older. But there has been some confusion as to what exactly the legalization of recreational cannabis entails, especially when it comes to the workplace.

There are questions on both sides: Are employers still allowed to drug test? Can an employee be fired for testing positive? What if it’s used for medicinal purposes? If half a joint is found in the parking lot, will it set off a The Office-style manhunt to find the perp? All valid questions. Let’s get to the answers.

How Prop. 64 Affects the Workplace

The simple answer is that the passage of Prop. 64 changes nothing when it comes to the workplace. Employers do not have to accommodate marijuana use by employees. Employers still have the right to drug test and terminate employees based on their company drug policy.

In fact, there is a clause within the law that specifically protects employers: Prop. 64 states that it does not affect “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, [or] possession…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.”

Under federal law, marijuana remains a Schedule 1 drug, which is considered to have the highest potential for abuse.

So, Prop. 64 does allow employers to enact and enforce their drug policies as they see fit. They are still allowed to terminate applicants and employees who possess or use cannabis. The measure legalized the recreational use of the drug, which does not extend to the workplace. Think of it the same way as alcohol—people over age 21 can buy and drink alcohol outside of work hours, but they can’t drink or get drunk during work.

What About Marijuana for Medical Use?

Employers also are not required to accommodate medical marijuana use. The California Supreme Court actually ruled in 2008 that companies can still terminate employees that test positive for marijuana, even if they have a doctor’s prescription for medicinal use under the Compassionate Use Act of 1996.  

While employers cannot discriminate against employees based on disabilities, they are not required to accommodate medical marijuana use.

Company Policy

This brings us to the importance of company drug policies. Employers need to clearly define their drug policy, including testing procedures and enforcement measures. Employees need to know what is expected of them, and what the company allows/doesn’t allow when it comes to marijuana. Employees should also be educated about these policies during onboarding.

Employers that fail to document their drug policy, or that leave any gray area when it comes to rules or enforcement, could open themselves up to discrimination allegations.

While Prop. 64 may have been a significant step for the state of California, it’s essentially the status quo when it comes to cannabis in the workplace.

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