California, Massachusetts, and Nevada recently legalized recreational use of cannabis for all adults, bringing the total to seven states and the District of Columbia. With this potentially far reaching decision, the question remains: How does this impact the workplace?
The short legal answer is, things are not presently changing. Proposition 64, by which California legalized adult use, expressly states that it does not affect “[t]he rights and obligations of….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.” In other words, nothing in Prop. 64 grants employees any rights in the workplace that they did not have before.
This provision also codifies the California Supreme Court’s holding in the case of Ross v. Raging Wire Telecommunications, Inc., in which the Court held that employers are not required to accommodate an employee’s medical marijuana use, even if such use is in full compliance with California state law. The Court also held that employers could make employment decisions based on pre-employment drug tests that screen for marijuana.
However, employers desiring to drug test employees are advised to consult with employment counsel prior to doing so. The reason has nothing to do with Prop. 64, but rather the fact that in California drug testing of employees must pass scrutiny for privacy concerns. There are often different standards when testing people prior to hiring versus after hiring. Moreover, testing must generally be based upon “reasonable suspicion” rather than blanket testing of all employees without cause, unless the job position involves safety issues such as truck driving, handling of hazardous substances, and the like.