Possible Workplace Protection for Marijuana Users
Proposition 19 on California’s November ballot seeks to legalize marijuana cultivation, processing, transportation, distribution, and sale for personal use. Proposition 19 supporters contend that a common sense approach to marijuana is needed, largely because anti marijuana enforcement efforts have failed, that it is arguably less harmful than alcohol, and that it should be regulated and taxed in the same way as alcohol. As California’s annual marijuana sales have been estimated at roughly $14 billion, Proposition 19 is effectively being promoted as a means to significantly enhance California’s cash strapped budget, while allowing limited criminal investigation and prosecution efforts to focus more on violent crime.
However, Proposition 19 also contains several vexing problems for California employers, including establishing workplace protection for marijuana use (provided such use does not result in “actual impairment,” which is undefined), requiring employers to consider marijuana use as a “reasonable accommodation,” creating a seemingly direct conflict with Cal-OSHA’s requirement to maintain a safe workplace, and eliminating eligibility for federal contracts over $100,000 (as it conflicts with the federal Drug-Free Workplace Act). The “actual impairment” standard is particularly troubling, as testing for such impairment is problematic. Unlike alcohol, marijuana impairment is not detectable by urinanalysis until several hours after ingestion, making it difficult to confirm “actual impairment” at the time of the incident in question. Moreover, also unlike alcohol, traces of marijuana use remain in the system long after its effects have subsided. Consequently, someone heavily intoxicated by marijuana may test negative, and someone completely sober may test positive.
To date, California employers have been permitted to treat medical marijuana use just as they would any other illegal drug use, including lawfully terminating employees who test positive for marijuana. The California Supreme Court upheld the legality of such terminations in Ross v. Ragingwire. If passed, Proposition 19 will change the legal landscape for employers.
According to a recent Field Poll, support for marijuana legalization has tripled over the past 40 years, to the point where roughly half of California voters now favor legalization. As a result, Proposition 19 currently appears to have a reasonable chance of being passed. While it is premature to change any employment policies concerning employee marijuana use, California employers are well advised to consult with their drug testing facilities to seek recommendations concerning appropriate and effective marijuana screening procedures.
