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Weed at Work? California Prop 64 in the Workplace

On November 8, California, along with Massachusetts and Nevada, legalized the recreational use of marijuana. With marijuana now legal in seven states, “the percentage of Americans living in states where marijuana use is legal for adults rose above 20 percent[.]

In light of this change, California employers have expressed concern regarding the continuing viability of their existing drug testing and use policies, which often contain general prohibitions on the use of illegal substances.

Fortunately, Proposition 64 directly addresses this concern, making clear that it does not affect:

“[t]he rights and obligations of . . . 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 provision codifies and extends the California Supreme Court’s caselaw holding that employers are not required to accommodate an employee’s use of medicinal marijuana, even though its use was legal under state law. The court also concluded that employers could conduct, and make employment decisions based on pre-employment drug tests that screened for marijuana. In light of this holding in Ross and the clear language of Proposition 64, employers with policies containing blanket prohibitions on the use of drugs (including marijuana) likely remain lawful.

Nevertheless, employers may observe an uptick in marijuana use of as a result of the Proposition. Thus, employers should review their existing policies and practices regarding drug testing current employees, as California law imposes numerous limits on such tests. For example, employers may generally not compel employees (except those in safety-sensitive positions) to undergo a drug screening without “reasonable suspicion” of impairment.  Mandating an improper test could result in claims for invasion of privacy and wrongful termination.

Compliance-minded employers should consult with experienced employment counsel to review policies and practices regarding drug screenings. In addition, management and human resources professionals should be prepared to address employee inquiries regarding marijuana use in light of Proposition 64.

© Polsinelli PC, Polsinelli LLP in California

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About this Author

Office Managing Partner

Charles Thompson combines a deep understanding of Labor and Employment law with a dedication to clients in order to positively impact their businesses.   As the Vice Chair of the firm’s west coast Labor and Employment practice, Charles represents clients ranging from Fortune 500 companies to Silicon Valley start-ups in California and throughout the nation through all phases of employment litigation.  He has tried employment, commercial, and professional liability cases to verdict and directed verdict, and is experienced in every facet of litigation including California...

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Associate

Brian Morris is an associate in Polsinelli’s Labor and Employment Litigation practice. He received his J.D. from the New York University School of Law in 2011, where he was a Staff Editor for New York University Journal of Law and Liberty.

Our attorneys have extensive experience providing employers with cost-efficient advice and aggressive defenses on employment and labor law matters. We have represented Fortune 500 corporations and privately owned entrepreneurial firms, and were ranked by Chambers USA in Labor & Employment, May 2016. The practice was also rated as a Standout in both complex and everyday employment litigation in the 2017 BTI Litigation Outlook, based on a survey of more than 300 general counsel at companies with more than $1 billion in revenue.

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