Employers with California operations may continue enforcing their drug-free workplace policies regardless of whether their employees use marijuana for medical or recreational purposes. When California voters passed the “Control, Regulate, and Tax Adult Use of Marijuana Act” (the “Act”), commonly known as Proposition 64, the recreational sale, possession and use of marijuana by adults 21 years and older was legalized under state law. While the recreational sale of the drug will not commence in the state until at least Jan. 1, 2018, at present it is legal for adults to use marijuana in their private residences, possess up to 28.5 grams of the drug, and grow up to six plants indoors. In other words, employees in California are no longer prohibited under state law from consuming the drug under limited circumstances. Possession, use and sale of the drug remains illegal under federal law.

The Act contains specific language that allows California employers to develop or maintain drug-free workplace policies. The Act applies equally to employers who have employees who use for medical and non-medical reasons. It does not require an employer to allow or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace, or prevent employers from complying with state or federal law.

The Act specifically allows employers to continue pre-employment screening and limited testing of current employees. Under existing California law, pre-employment drug testing is permitted if the employer screens all applicants. Employers can also randomly test employees who perform safety-sensitive jobs, if there is a reasonable suspicion that the employee is under the influence, and where required under federal law. Because the rules concerning post-employment testing are currently under scrutiny by OSHA, and are complex and require fact-specific analysis to avoid invasion of privacy claims under the California Constitution, review of testing policies and procedures with counsel is recommended.

What Employers Should Do Now

California employers should revisit their drug and alcohol policies to ensure they have appropriate policies and procedures in place consistent with the desired approach for treating marijuana in the workplace. Employers with no such policies should make a strategic determination about how much control it wants to exude over employee use and develop policies that prohibit use, or update existing policies. Employers that do not already have a drug testing program should consider implementing one, and the consequences for breach of the policy or a positive test should be determined. Training of supervisors concerning the policy and recognizing the signs of impairment is also recommended. Finally, communicate the updated policy to employees.