Each year brings new California labor laws. This year has brought a few that will affect employers, but not like you might think.
On November 8th, California joined several other states in legalizing recreational use of marijuana by adults. Proposition 64, also known as the Adult Use of Marijuana Act, legalized the recreational use of marijuana for adults 21 years old and over. The provisions related to the legalization of marijuana and workplace protections took effect November 9 — the day after the election.
While the legalization of marijuana for recreational use is a historic change to current law, several things will not change. For example, smoking or ingesting marijuana in public will remain unlawful, as well as smoking or ingesting marijuana in places where smoking tobacco is already prohibited. Similarly, driving under the influence of marijuana will remain illegal.
But what about smoking it while at work?
California employers in particular may wonder what the potential impacts of Proposition 64 will be when it comes to the workplace. California employers need not worry, however, because Proposition 64 maintains the status quo for employers seeking to maintain a drug and alcohol-free workplace.
This is because employer policies related to drug possession, use and impairment, and drug testing are not compromised with the legalization of marijuana use under Proposition 64.
The new law’s primary component is the decriminalization of recreational marijuana use, not banning or restricting an employer’s ability to regulate marijuana usage in the workplace. Instead, it explicitly allows public and private employers to enact and enforce workplace policies pertaining to marijuana.
Proposition 64 Does Not Interfere With Workplace Policies
Proposition 64 also 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.”
Under the Controlled Substances Act, marijuana remains a Schedule I drug, which is the designation for controlled substances prone to abuse and psychological/physical dependence. Consequently, employers can still rely on federal law to refuse to hire applicants who tested positive for marijuana use.
This means, too, that even with the passage of Proposition 64, employers may continue to prohibit use, possession and impairment at work and may continue to test for use when appropriate.
Proposition 64 specifically allows employers to continue pre-employment screening and limited testing of current employees. Under existing California law, pre-employment drug testing is permitted if the employer screens all applicants. Employers can also randomly test employees who perform safety-sensitive jobs, if there is a reasonable suspicion that the employee is under the influence, and where required under federal law.
However, the rules concerning post-employment testing are currently under scrutiny by OSHA, and are somewhat complex. In addition, they require fact-specific analysis to avoid invasion of privacy claims under the California Constitution. Because of these conditions, it is recommended to review testing policies and procedures with legal counsel.
Employers with California operations may continue enforcing their drug-free workplace policies regardless of whether their employees use marijuana for medical or recreational purposes. While the recreational sale of the drug will not be allowed in the state until at least January 1, 2018, it is currently legal for adults to use marijuana in their private residences, to possess up to 28.5 grams of the drug, and to grow up to six plants indoors.
In other words, employees in California are no longer prohibited under state law from consuming the drug under limited circumstances. Possession, use, and sale of the drug, however, remains illegal under federal law.
As noted previously, the law contains specific language that allows California employers to develop or maintain drug-free workplace policies and this applies equally to employers who have employees who use for medical and non-medical reasons. It does not require an employer to allow or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace, or prevent employers from complying with state or federal law.
What Employers Should Do To Prepare
California employers should revisit their drug and alcohol policies to ensure they have appropriate policies and procedures in place. In addition, it is a good time to remind employees not only about the company’s drug-free workplace policy and practices but also to specify that marijuana is also prohibited.
Employers who have no policies in place should determine what issues they want to address regarding employee use and develop policies that prohibit use. In addition, employers that do not already have a drug testing program should consider implementing one, and clarify and document the consequences should a positive test should be determined.
Complying With California 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.
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