California Proposition 64 has passed and now recreational use of marijuana is legal in the state. However, the new legal status of marijuana is not expected to affect employer workplace drug policies.

Proposition 64 legalized the recreational use of marijuana for adults aged 21 years or older. Smoking is permitted in a private home or at a business licensed for on-site marijuana consumption. An individual is permitted to possess up to 28.5 grams of marijuana, and an individual is permitted to grow up to six plants within a private home.

The new law’s effect on the rights of employers is explicitly addressed in the statute itself. Proposition 64 provides that the intent of the new law is to permit “[a]ll public and private employers to enact and enforce workplace policies pertaining to marijuana.” The statute goes on to state that the legalization of marijuana use shall not affect:

-    the rights and obligations of public and private employers to maintain 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. 

Neither federal nor California law prohibit making employment decisions based on marijuana use. Employers will still have wide discretion to decline to hire, to discipline and even to terminate a job applicant or employee who tests positive for marijuana (subject to laws restricting an employer’s ability to require employee drug tests). Additionally, since marijuana is still illegal under federal law, employers are not obligated to permit a disabled employee to be under the influence of marijuana at work as a reasonable accommodation.  

This content is made available by Louderback Law Group for informational purposes only, not to provide specific legal advice. This information contained herein should not be used as a substitute for competent legal advice from a licensed counsel.