Employment Law

California’s Prop 64 and the Legalization of Recreational Marijuana: What Employers Need to Know

By Nadia P. Bermudez

Nadia B. Bermudez, Esq.
Nadia B. Bermudez

Last November, California’s electorate voted in favor of legalizing recreational use of marijuana (57.13% to 42.87%). Despite the recent change in law, employers can continue to enforce their workplace substance abuse policies.

Proposition 64, the “Control, Regulate and Tax Adult Use of Marijuana Act” (the Act), makes it lawful for persons (aged 21 years or older) to use marijuana for nonmedical reasons. The law also creates a system for regulating nonmedical marijuana businesses, imposes taxes on marijuana, and changes penalties for marijuana-related crimes. The Act, however, does not interfere with a California employers’ right to create and enforce workplace substance abuse policies.

The Act expressly states that its intent is “allow public and private employers to enact and enforce workplace policies pertaining to marijuana.” Moreover, the Act includes specific language to be added to the Health and Safety Code section 11362.1 to read that the law will not be construed or interpreted to restrict or affect: “[t]he 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.

Over 20 years ago, California passed Proposition 215 (the “Compassionate Use Act”), which legalized the use of medical marijuana in the state. A 2008 California Supreme Court decision, Ross v. RagingWire Telecommunications, Inc., 42 Cal 4th 920 (Cal. 2008), tested the scope of Prop 215 as it impacted the workplace. The Supreme Court in Ross upheld an employer’s right to decline the hiring of a candidate due to a positive marijuana test that the applicant claimed was related medical use for a disability and recommended by a physician. Even with Proposition 64, California law remains clear that an employer need not accommodate an applicant or employee’s use of medical marijuana.

Employers and employees should keep in mind that under federal law, marijuana remains a Schedule I drug under the Controlled Substances Act. Current federal law provides that certain drugs can be used “under the supervision of a licensed health care professional” or pursuant to a “health care professional’s prescription.” Additionally, states such as Alaska, Colorado, Oregon, Washington and the District of Columbia have similarly legalized recreational use of marijuana, under different statutory schemes.  Therefore, it is important that employers carefully review and update their policies to ensure that employees are aware of expectations of them.

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