When Californian's go to the polls on November 2nd,
one of the measures on the ballot will be Proposition 19. Officially known as "The Regulate, Control and Tax Cannabis Act of 2010",
the ballot measure seeks to legalize the recreational use of marijuana
in a private residence (or other non-public place) by anyone over the
age of 21. If passed, the initiative will create a host of very
serious problems for California employers.
Even if the ballot measure passes, its enforceability is seriously in question. All of the activities which Proposition 19 purports to legalize under state law remain illegal under federal drug laws. Constitutional law experts
expect an immediate court challenge to California's right to enact a
law at odds with prevailing federal law. The litigation over this
claim of so-called federal law "pre-emption" could take years to
conclude. Meanwhile, employers will have to decide whether to
follow the new law. Those who opt to wait for the legal dust to
settle before complying, could face lawsuits of their own by aggrieved
employees and job applicants.
of the initiative liken marijuana to alcohol and claim that the public
will benefit from legalization, much in the way the public supposedly
benefited from the end of Prohibition. Legalization advocates
point to potential new tax revenue
from cannabis (like cigarettes and liquor). They also assert that
public safety will be enhanced because cannabis production will be
overseen by the state instead of foreign drug cartels. Finally,
the measure's supporters claim that redirecting scarce resources away
from these cannabis crimes will free up budget dollars for higher
priority items like education, senior care, mass transit, health care
and the prosecution of more serious crimes. Notably, all of the
candidates running for Governor, Attorney General and U.S. Senate oppose the measure.
it remains to be seen how far a court would go in interpreting the
measure, or even whether the measure will survive a constitutional
challenge, the new law is a potential bonanza for the contingency
lawyers who will sue businesses under Proposition 19's controversial
laws classify marijuana as an illegal substance and provide criminal
penalties for the use, possession and cultivation of the drug.
Proposition 19 will not have any effect on these laws or the right of federal authorities to arrest and prosecute marijuana users.
California law also outlaws marijuana use, except in the case of medicinal use under a health care directive. Proposition 19 will legalize the cultivation, possession and use of marijuana by any person over the age of 21.
November 1996, voters approved Proposition 215, which legalized the
cultivation, possession and consumption of marijuana in California for medical purposes. However, the U.S. Supreme Court ruled that federal authorities may continue to prosecute Californian's medical marijuana users.
When President Obama came into office, his appointment to the position of U.S. Attorney General announced that the Justice Department
would not spend its limited resources on the prosecution of marijuana
patients. However, the administration has not weighed in on non-medicinal
uses of cannabis. Currently, no other state permits commercial
marijuana-related activities for non-medical purposes.
the measure, persons age 21 or older generally may: (1) possess,
process, share or transport up to one ounce of marijuana; (2) cultivate
marijuana on private property in an area up to 25 square feet per
private residence or parcel; (3) possess harvested and living marijuana
plants cultivated in such an area; and (4) possess any items or
equipment (so-called paraphernalia) associated with these activities.
To be legal, the possession and cultivation of marijuana must be solely for an individual's personal consumption and not for sale to others. Moreover, the consumption of marijuana would only be permitted in a residence or other "non-public place." (One exception is that marijuana could be sold and consumed in licensed establishments).
The bolded language about imbibing in non-public places has recently attracted attention and concern among employers. The California Chamber of Commerce is warning its members that this language could be interpreted to grant marijuana smokers the legal right to smoke pot at work because most work settings are non-public places.
this is an extreme view, there is at least one labor law case defining
"non-public" place in a way which lends credence to this
position. The California Supreme Court
just agreed to hear that case and a decision is expected in about a
year. Meanwhile, proponents of the measure are expected to latch
onto this case when arguing in support of an employee's right to
possess and use cannabis at work. Until the issue is finally
decided, legalization proponents will be looking for test cases to help
define the legal boundaries of at-work cannabis possession and
is also language in the measure prohibiting employers from
"discriminating" against marijuana users, or denying them "any right or
privilege". This language could have a direct effect on hiring
practices if the statute survives constitutional challenge. A
court could interpret this language to mean that employers are
precluded from considering (lawful) marijuana use when deciding whether
to hire an applicant, much in the way it is illegal to consider an
applicant's race or age. If so, then it follows that
pre-employment drug screening tests
to ferret out cannabis users likely would be illegal as well. A
legal mandate to hire admitted pot smokers raises a host of potential
concerns about workplace safety, third party liability and efficiency.
issue of pre-employment testing for cannabis use was addressed two
years ago by the California Supreme Court in a case where a medical
cannabis user failed a pre-employment drug test. The employee claimed that he was entitled to special treatment at work because of his medicinal use of the drug. The Court
disagreed, ruling that the medical cannabis law (Proposition 215) did
not give users any rights on the job. The Court went on to say
that under existing law, employers are free to refuse employment to
cannabis users, even those who use cannabis under a doctor's orders.
same cannot be said about Proposition 19. Proponents of the
ballot measure point out that the measure's specific mention of
employee rights makes it far different from Proposition 215. That
is a matter that will be resolved in the courts as well.
ballot measure provides an exception for situations where the employer
is under a legal mandate to maintain a drug-free workplace (mostly
federal contractors) or the applicant is being considered for a
"dangerous position" where pre-employment drug testing is
mandated. The measure does not elaborate upon this exception, but
there are very few jobs that actually mandate applicant drug
testing. Thus, if the law survives a constitutional challenge,
most businesses would have to follow it.
The measure also creates new legal protections by stating that no individual may be punished, fined, or discriminated against
for engaging in any conduct permitted by the measure. The measure
throws a bone to employers by stating that employers retain existing
rights to address consumption of marijuana. However, the measure
goes on to say that employers may only do so where the marijuana
consumption actually impairs an employee's job performance.
backers of the initiative liken the drug to alcohol, there are no
established standards to determine precisely when a person is
"impaired" by cannabis use. The use of the term actual impairment
suggests that anything less is not a basis for employer action.
This, in turn, raises a host of employer concerns.
example, does the initiative permit an employee to work after having
consumed marijuana at home? Proponents of the measure blithely
say "yes", unless of course there is a determination that the
employee's legal use of the drug actually impairs job
performance. Hence the question: how much consumption is
permissible before it can be said that the drug actually impairs an
employee's job performance? Will this be different for certain
jobs (say, the operator of a motor vehicle or dangerous equipment, as
compared to an office worker)? The absence of clear standards is
an invitation for legal challenges.
Does this also mean that an employer must observe a degradation of performance before
interceding? Or, is the mere suspicion of impairment (e.g., the
employee has bloodshot eyes or smells from marijuana smoke) enough to
mandate drug testing, or at least the removal of the employee from the
job? The California Chamber of Commerce warns that the ambiguous
wording of the measure might very well mean that an employer cannot
take action until after there has been a noticeable decline in
What about existing employer policies barring the possession of cannabis or drug paraphernalia on the employer's premises. Since the ballot measure purports to legalize the possession of marijuana
and "equipment" associated with its use (e.g., rolling papers, pipes
and the like), it is an open question whether employers may continue
Proposition 19 will not become the law unless the measure receives a majority approval on November 2nd.
There is still time for the "NO on Prop 19" forces to galvanize.
If the measure does pass (pollsters say the vote is very close at this
juncture), employers will face some tough choices. Few employers
desire to be the "test case", but some company or companies will assume
that role. There is simply too much at stake financially for
contingency lawyers and legalization advocates to ignore the measure's
impact on employment.
Federal contractors who must comply with federal mandates for a drug free workplace likely will have to continue current practices. For those that are not under a federal mandate,
the choices will be tougher. How a particular employer chooses to
respond in the face of so much legal uncertainty will depend upon risk
tolerance, the perceived need for job safety and efficiency, and the
company's culture. Since marijuana consumption remains a federal crime,
maintaining the status quo until the legal dust settles seems like an
intuitively sound position. However, since that is a position which
carries a certain amount of risk, this is a very good time to review
the company's options with expert labor counsel and the company's
employment practice liability insurance broker.
Your contact at the Firm is available to assist you with any questions you may have regarding this subject.