Employers Should Evaluate Their Workplace Policies and Procedures After Voters Passed Proposition 64 to Legalize Marijuana in California

Author: Sean Gentry

With the passage in California of Proposition 64 legalizing recreational use of marijuana for persons aged 21 years or older under state law (though not under federal law) and allowing for the sale of marijuana in certain circumstances, employers will want to review and potentially revisit their testing procedures and workplace policies.  Despite the new legal uses of marijuana, employers can still implement and enforce policies than ban marijuana (along with alcohol and other drugs) and intoxication from the workplace.  Employers may still take disciplinary action against employees that violate these policies, up to and including termination, even if the use of the marijuana is for medical purposes.

As for pre-employment drug screening, testing is permissible if it is administered on a fair and consistent basis for all applicants.  Employers can choose not to hire applicants that test positive, again even if the marijuana use is for medical purposes.  However, employers should not test their current employees.  Such drug screening is only permissible in select circumstances where the employer has reasonable grounds for suspicion of drug use in the workplace.  An accident is not an automatic grounds for suspicion or for such a test.  In San Francisco the criteria for such drug screening of employees is even higher.  Nonetheless, larger employers may be required to provide certain reasonable accommodations for employees seeking help for substance abuse problems and should not take adverse actions against the employee while they are seeking treatment.  If you have questions regarding this new law or workplace drug policies generally, or if you need help with designing or administering workplace policies and procedures, Ad Astra can help employers navigate these issues.


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