• Proposition 19 Creates Legal Haze for Employers
  • November 9, 2010
  • Law Firm: Jackson Lewis LLP - San Francisco Office
  • On November 2, 2010, California voters will decide a ballot measure with sweeping implications for retailers and their human resources professionals in the state. Otherwise known as the “Regulate, Control and Tax Cannabis Act of 2010,” Proposition 19 seeks to legalize the recreational use of marijuana in a private residence or other non-public place by anyone over the age of 21. In addition, the ballot measure states, “no person shall be punished, fined, discriminated against, or denied any right or privilege for lawfully engaging in any conduct permitted by this act.” Notably, the initiative seeks to limit employers’ ability to address marijuana use to situations where job performance is actually impaired.

    The language prohibiting employers from discriminating against marijuana users, or denying “any right or privilege” could make it illegal to consider marijuana use in deciding whether to hire an applicant, the same way employers are currently prohibited from considering other protected classifications, such as race, gender, or age. This will impact any California retailer currently conducting pre-employment drug screening. Moreover, for those employment decisions involving current employees, the employer will bear the burden of proving marijuana actually impairs job performance. This presents a special challenge in the absence of a defined standard for determining “actual impairment” due to marijuana use.

    Notwithstanding, courts in recent years have generally sided with employers in the medical marijuana debate. For example, in 2008 the California Supreme Court ruled that, because current law states employers aren’t required to accommodate medical marijuana patients who use marijuana in the workplace, an employer doesn’t discriminate if it discharges an employee who uses medical marijuana only outside of work. Proposition 19, if passed, will change how courts decide such issues, since the ballot measure contains special workplace protections for marijuana users. It remains to be seen how the courts will interpret an employer's ability to terminate employees for marijuana use, which is still prohibited by federal law. But the lack of clear standards in Proposition 19 makes further legal challenges inevitable.

    Regardless of the outcome of the vote, retailers and their employees should keep in mind that even if something is legal, it may still be disallowed under company rules. But since the ballot measure includes broad language legalizing possession of marijuana and related paraphernalia, employers will need to review their policies. And although the myriad laws regarding workplace drug testing are beyond the scope of this article, maintaining a drug-free workplace is an important risk control, especially for retailers whose employees operate machinery such as forklifts or delivery vehicles.