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As you read this article, signatures are being gathered in California in support of the “Control, Regulate and Tax Adult Use of Marijuana Initiative.” If sufficient signatures are collected, the initiative will be on the November 2016 ballot.
If passed by the voters, marijuana will be legalized for recreational use in California. The implications for employers in the Central Valley, and across California, could be significant. A summary of the initiative is provided below. However, as always, this article does not substitute for the advice of legal counsel.
In 1996, voters passed Proposition 215, The California Compassionate Use Act, which authorized the use of medical marijuana in California. The law makes it legal for patients and their designated primary caregivers to possess and cultivate marijuana for their personal medical use as recommended or approved by a California-licensed physician.
Currently, the medical use of marijuana is recognized and lawful in approximately 20 states. The District of Columbia and four other western states — Colorado, Washington, Alaska and Oregon — have gone one step further and legalized the recreational use of marijuana.
As recently as 2010, California voters rejected Proposition 19, which would have legalized marijuana for personal use. At that time, 53.5 percent of voters voted “no.” However, it now appears that the same issue is heading for the ballot again and is trending favorably in the polls. Even the California Medical Association has officially endorsed the legalization of recreational marijuana.
Notwithstanding the various state laws authorizing marijuana use, the substance remains a “Schedule I” controlled substance under federal law, which means the substance is deemed to have no medical value. Contrast that with methamphetamines and cocaine, Schedule II substances, which are found to have specified medical purposes under federal law. Today, it remains a federal crime to possess marijuana.
Courts have grappled with the tension between state and federal law in this area, and in several instances have concluded that employer prohibitions on testing positive for marijuana are supported by federal law. For example, a federal court in New Mexico recently concluded that an employer need not accommodate marijuana use by an employee diagnosed with HIV/AIDS, as the substance remains illegal under federal law. (Garcia v. Tractor Supply. 2016 WL 93717.)
The Colorado Supreme Court recently held that the state law protection for “lawful, off duty conduct” did not extend to marijuana use, again indicating that such use is not permitted by federal law. (Coats v. Dish Network, 350 P.3d 849 (2015).
Similarly, the California Supreme Court concluded in 2008 that an employer need not hire a job applicant who tests positive for marijuana, even if applicant was disabled and the marijuana was prescribed by a doctor to address the disability. (Ross v. RagingWire 174 P. 3d 200, Cal. Supreme Ct. 2008).
The language of the pending California initiative allows employers to continue to enforce drug-free workplace policies. The initiative provides: The initiative shall not affect the “ability of… employers to…enforce…policies prohibiting or restricting actions or conduct otherwise permitted under this Act in the workplace….”
However, the pending California initiative contains language which could require employers to accommodate medical marijuana use. The initiative provides: “(T)o the extent feasible…employers shall treat qualified [medical marijuana] patients…in a manner reasonably equivalent to patients…using…other legal medications.”
Unfortunately, it is difficult to predict those actions which will be deemed to be “feasible” and those which would not. If the initiative passes, it likely will take years of litigation to sort out this and other questions.
Even if the initiative passes, it is anticipated that many California employers will continue to enforce drug-free workplace policies. However, others may choose to treat marijuana use in a manner similar to use of alcohol: prohibiting employees from reporting to work “under the influence.” Unfortunately, unlike the blood alcohol test, which can identify actual impairment, there is no current drug test which will indicate whether an individual is currently under the influence of marijuana.
Employers are advised to continue to follow the progress and development of this initiative, and be prepared following the November election to implement policy changes which may be required should the initiative be adopted by the voters.
Bruce Sarchet is an attorney with the firm of Littler Mendelson and represents employers in labor and employment law matters. You can contact him at firstname.lastname@example.org.