Frequently Asked Questions about Proposition 64│Employment Law

Frequently Asked Questions about Proposition 64│Employment Law

During the most recent election cycle, California voters passed Proposition 64, also known as the Adult Use of Marijuana Act, which permits the recreational use of marijuana for adults 21 years old and over. Effective November 9, 2016, state law allows adults to smoke or ingest marijuana in a private home, to possess small amounts of non-medical marijuana, and to grow small amounts at home for personal use. Effective January 1, 2018, state law will also allow for the purchase and consumption of marijuana at a licensed business.

Marijuana, however, remains illegal under federal law, including for medical use, and the new administration could decide to undertake enforcement efforts not currently utilized. Proposition 64 also makes clear that employers remain free to test workers for marijuana use before hiring them, or at any point during their employment if there is a reasonable suspicion of impairment.

Here are some frequently asked questions about the impact that Proposition 64 will have on California businesses and employers.

Can employers conduct drug tests that include marijuana screening?

Yes, Proposition 64, the “Control, Regulate, and Tax Adult Use of Marijuana Act” (the “Act”) which legalizes recreational marijuana for those over 21, expressly states in the “Purpose and Intent” section that the Act will continue to “allow public and private employers to enact and enforce workplace policies pertaining to marijuana.” Therefore, employers may still conduct drug tests including marijuana screening, assuming employers have a written policy in place that is in compliance with legal requirements.

If an applicant tests positive for marijuana, can they be disciplined or terminated?

Yes. While the legal ramifications for marijuana related possession has changed, the employment consequences have not. Despite being legal for adults 21 years and older to possess, process, transport, and even cultivate marijuana, employers remain empowered to test for, and discipline (up to and including termination of employment) employees that test positive for the substance. Furthermore, an employer is not required prove that the employee was intoxicated on marijuana on the job to effectuate discipline that they deem is appropriate.

Does Proposition 64 affect OSHA’s recent limitations on post-accident testing?

No, Proposition 64 does not affect OSHA’s recent limitations on post-accident testing. OSHA instructs employers to “limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.” On that basis, Prop 64, which does not limit, restrict, or amend an employer’s right to implement their drug and alcohol policies, would not impact OSHA’s limitation to only conduct post-accident testing when drug use is likely.

How does the new law affect Department of Transportation’s drug testing requirements?

The Act does not affect the Department of Transportation’s (DOT) drug testing requirements. The DOT requires certain parties to conduct drug and alcohol testing in accordance with the department’s regulations and procedures. Given that the Act merely permits recreational use for those 21 years of age and older, but does not alter, amend, or modify an employer’s obligations to enforce their drug policies, the DOT’s testing policies are similarly unchanged.

It is important to note that every employment law situation is unique and this blog post is not a replacement for legal counsel. If you have questions on the impact of Proposition 64 on your business, contact the Employment Law Department at Young Wooldridge, LLP.

To read our full 2017 Employment Law Update, Part One and Part Two are available now. 

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