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Will Passage of Prop 64 Affect CA Employers' Drug Policies?

By Jonathan R. Tung, Esq. on August 10, 2016 | Last updated on March 21, 2019

California voters will get a chance to finally legalize the adult possession and consumption of marijuana within this state, joining the ranks of D.C., Oregon, Washington, and a few other jurisdictions this coming November 8th. This, despite marijuana still being listed as a banned substance under the federal Controlled Substances Act.

You may be wondering how the passage of Prop 64 will affect California employers' rights to vigilantly control drug policies. Likely, not much.

No Impact

Why do we feel this way? Because writers of the bill specifically took that into consideration and included the following language: The "Purpose and Intent" of Proposition 64 "allow[s] public and private employers to enact and enforce workplace policies pertaining to marijuana." Additional language within Prop 64 also prohibits it from being interpreted to mean the following.

Proposition 64 does not mean:

  • A requirement of an employer to permit the use, possession, consumption, possession, transport. display, sale, etc. of marijuana in the workplace.
  • Employers must abandon their current policies with regards to the use of marijuana by current employees or prospective employees.
  • Employers are restricted in their ability to maintain a drug-free and alcohol-free workplace.

In other words, the spirit of Prop 64 is to decriminalize the adult use of marijuana for recreational purposes -- but employers can still ban it in the workplace. With an eye to that policy, employers can justify the refusal to hire a prospective employee for testing positive for marijuana under Ross v. RagingWire Te1ecomm., Inc. and ought not face any legal issues having a suit dismissed.

A Look at the Language

Prop 64 ought not be regarded as a celebration of weed, but rather a proposal to decriminalize the recreational use of the drug. Employers will not soon forget that the substance is still classed as a Class I controlled substance under federal law and is still technically illegal -- thought it is treated somewhat with kid gloves following the Cole Memo.

In-house attorneys in California may find it advantageous to hold an informational presentation reiterating company policies with regards to marijuana in the workplace if Prop 64 should pass this November. If it passes, no doubt many employees will celebrate by bringing pot to work. Sometimes, spirit gets the better of common sense.

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