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Weed in the Workplace

The passage of Proposition 64 in California has raised a lot of questions, especially for employers who have drug related policies.  Employers have concerns regarding how this law will impact their businesses and whether the law will limit an employer’s ability to drug test its employees and make employment decisions accordingly.  

For instance, a contractor has an employee who comes to work under the influence of marijuana and is supposed to operate a heavy machine on a project site. Can the employer take action against the employee to ensure that they do not operate the machine? Absolutely! There is nothing in the law that prevents this; employers still have the ability to conduct business in accordance with their internal policies. In fact, in the context above, the failure of the employer to take action could result in harsh penalties and repercussions for the contractor in the event the employee caused injury to himself or others.

Proposition 64 legalized marijuana under state law for use by adults 21 or older.  However, what many have not yet realized is that this law also includes a number of enumerated limitations and exceptions.  Employers (and employees) in California should know that the new law still protects both private and public employers’ ability to monitor the workplace, allowing them to enact and enforce workplace policies pertaining to marijuana.

Employers retain the right to maintain a drug and alcohol free workplace, which includes the allowance of drug testing. 

Employers retain the right to maintain a drug and alcohol free workplace, which includes the allowance of drug testing.  (Health and Safety Code § 11362.45 (j)).  However, if employers are going to maintain a drug testing policy, it is important for the employer to have this policy in writing and distributed to employees in order to place employees on notice. Further, in light of the passage of Proposition 64, now may be a good time to remind your employees of any policies of the company relating to drugs.

Even with the legal assurance expressly provided in the law, employers may still be reluctant to enact, maintain or enforce a drug testing policy given the new law. It is a fact that employees may now legally smoke marijuana.  As a practical matter, this changes the perception of marijuana, making it legal and more socially acceptable.  As a result of this changing perception drug testing is now more likely to result in the loss of key employees (who may not have smoked marijuana previously based on its illegality). This is likely to be a consideration for many employers in determining whether or not to enact and/or maintain a drug policy.

Further, since marijuana is now legal employees will need to be educated on the limits of the law as they are more likely to hold the misconception that they can smoke without consequence.  Employees must understand that the employer policy still remains intact and there can still legally be ramifications in the workplace.Employers face a new landscape. Those who decide to maintain drug-free policies may face a diminished pool of potential workers as those who desire to smoke may decide not to apply for a position or remain with a company. On the other hand, employers who relax their rules may end up with a reputation for hiring a certain type of worker and may face increased liability from workers who are performing their job under the influence of marijuana.The bottom line is it is up to the employer to decide how to proceed in this new landscape. Employers retain the legal right to enact and enforce their drug policies. Employers in the construction industry specifically may want to think twice before eliminating or relaxing their policies. The construction industry comes with inherent risk already, the addition of relaxed drug policies would pose a significant danger of increased liabilities and unsafe working conditions. With the strict safety requirements and harsh penalties for failure to promote safe working conditions, it seems wise for employers in construction to continue to maintain strict drug-free policies and, in light of the new law, potentially revisit these policies to determine if they are strict enough.