November 2016 saw the legalizing of recreational use of marijuana in California. Then recreational marijuana sales became legal in California on January 1, 2018. But what does this mean for the workplace?

Limitations of the Recreational Use Law

The recent legalization of marijuana for recreational use was a significant change from previous laws, but there are still major limitations. For example, the smoking or ingesting of marijuana in public is illegal, as well as smoking or ingesting marijuana in places where smoking tobacco is prohibited.

The passage of the Adult Use of Marijuana Act (AUMA)  established that users can only consume cannabis on private property. Driving under the influence of marijuana, like alcohol, is illegal, as well. According to the state Department of Public Health’s website,

"You cannot consume, smoke, eat, or vape cannabis in public places."

California Workforce Management Concerns

Many California employers are unclear of the impact of the law when it comes to the workplace. However, the 2016 law maintained the status quo for employers who have a drug and alcohol-free workplace.

The law does not impact employer policies on drug possession, use and impairment, and drug testing. While the primary component of the law is the decriminalization of "recreational" marijuana use, it still allows public and private employers to enact and enforce workplace policies pertaining to marijuana use.

The AUMA labor law clearly states that it does not amend, repeal, affect, restrict, or preempt:

“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, 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.”

According to the federal Controlled Substances Act, marijuana is a Schedule I drug which means it's considered a controlled substances prone to abuse and psychological/physical dependence.

For California employers this means the federal law can be cited when refusing to hire applicants who tested positive for marijuana use. In addition, this means that organizations can prohibit marijuana use, possession and impairment at work and that testing for use is allowed when appropriate.

Simply put, all employers in California may continue enforcing drug-free workplace policies regardless of  employees private use of marijuana for medical or recreational purposes. Although employees in California can legally consume the drug under limited circumstances, the possession, use, and sale of the drug, remains illegal under federal law.

The Impact of Legalized Recreational Marijuana Sales

According to a post on Politifact.com,

"The law permits adults 21 and up to buy 1 ounce of cannabis per day, which is enough material to fill a few dozen joints. You can alternately purchase up to 8 grams of cannabis concentrates found in marijuana edibles such as candies, brownies and breakfast bars.

The number of edibles you can legally possess depends on the product itself. A can of cannabis butter, for example, contains a larger amount of concentrates than a single edible, so concentrate-heavy products could put the carrier over the legal limit."

While this does not change the existing prohibitions and restrictions on public and workplace consumption of medical or recreational marijuana, it does pose some potential issues at work.

For example, possession of recreational marijuana on an employer's premises may or may not violate the company's existing drug policies. Keep in mind that there still is no state law that protects employees from termination for using marijuana in the workplace.

A 2008 Supreme Court decision ruled that employers are entitled to fire employees who fail a drug screening for marijuana, regardless of state law. This did not change with the passage of the Adult Use of Marijuana Act (AUMA) in 2016 nor the enactment of Proposition 64 in 2018.

In fact, while not strictly a labor law, Proposition 64 does have specific language that allows employers to tailor their workplace drug use policies according to their own preferences. An employer can, if they so wish, remove marijuana from the common 5-drug panel used which also tests for cocaine, PCP, opiates and amphetamines.

While some employers may wish to take a more tolerant approach to employee marijuana use, if those employers contract with the federal government that may not be possible. Businesses contracted by the federal government must defer to federal law that still classifies marijuana as an illegal drug.

Employee Handbooks and Drug Use Policies

California employers should review their employee handbook, and possibly revise, their drug and alcohol policies to ensure they have appropriate policies and procedures in place. In addition, it is a good practice to periodically remind employees not only about the company’s general drug-free workplace policy and practices, but also to make it clear that marijuana is also prohibited.

For organizations that do not have policies in place it is important to determine what needs to be established regarding employee drug use and to then develop policies to document those decisions.

In addition, it is important to have a comprehensive drug testing policy and process, and to clarify and document the consequences of positive test results.

Getting Help With CA Labor Law

Another key step in maintaining HR compliance while increasing your company's cost-effectiveness is to consider outsourcing. A professional payroll management and workforce solutions provider such as Accuchex can offer much-needed help with Human Resources needs and questions.

If your organization would like to learn more about its obligations, or acquire resources to deal with these types of situations, Accuchex recently partnered with HR Solutions Partners to offer its customers the most up-to-date and professional human resources management solutions available. To learn more about the different levels of Human Resource Management services available, please follow this link.

To learn more about the services Accuchex provides click here or click on the button below to download our free guidebook: