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Could the Golden State Be Next?
What you should know if recreational use of marijuana becomes legal in California

By June D. Bell  5/27/2014
 

California voters legalized the use of medical marijuana in 1996. Twenty years later, in 2016, will they also give the nod to the recreational use of marijuana?

After failing to gather enough signatures—about half a million—to get the measure on the 2014 election ballot, pro-pot forces in the Golden State are mobilizing a statewide effort to coincide with the next presidential election. They’re hoping that a higher level of voter participation in presidential election years, coupled with increasingly liberal views on legalizing marijuana, will create the critical force to legalize recreational pot use.

Californians have long flirted with the idea of legalizing marijuana. A 1972 ballot initiative on the question garnered the support of 33 percent of voters. A 2010 effort was closer, with 46 percent of voters supporting the measure. Dale Gieringer, director of the California chapter of the marijuana advocacy group National Organization for the Reform of Marijuana Laws, says that as many as 60 percent of Californians polled recently on legalizing recreational marijuana support the idea.

The tide appears to be turning across the country in favor of legalizing small amounts of marijuana for recreational use. Colorado and Washington state became the first states to legalize pot in late 2012. “I don’t think California is going to be left behind for much longer. I’m predicting 2016 is the year it’s going to happen,” says Chris Olmsted, an employment lawyer with Barker Olmsted & Barnier of San Diego.

California Challenges and Questions

Attorneys who advise companies with operations in Colorado and Washington have been grappling with questions about employees’ marijuana usage, zero-tolerance policies, accommodation, discrimination claims and liability. Those same challenges and legal questions are likely to arise in California should marijuana become legal.

Human resources professionals play a vital role in shaping policies governing workers’ marijuana use. Putting sound policies in place sends a clear message to workers about what, if any, drug use off the job will be tolerated. Most businesses have great leeway in crafting their policies; management can take a hard line and enforce zero-tolerance policies with random drug testing or can be more accommodating, requiring only that employees don’t report for work under the influence or pose a safety threat.

Although 21 states and the District of Columbia have legalized marijuana for either medical or recreational use, the drug remains illegal under federal law. Doctors cannot prescribe it, and it’s against the law to possess what the federal government classifies as a controlled substance. But the U.S. Department of Justice hasn’t targeted individual users for prosecution. Instead, in 2009, it announced that it will be focusing its energies on cracking down on drug cartels and organized crime.

Easier to Obtain

The federal government’s willingness to look the other way has been a boon to marijuana sales in Colorado. Though medical marijuana had been legal there since 2000, it wasn’t until the Department of Justice’s announcement that dispensaries began popping up across the state. Suddenly, the drug was easy to obtain and more widely available than ever before, says Vance Knapp, a partner in the labor and employment department of Sherman & Howard in Denver.

That’s when Knapp says his phone began ringing with questions from employers about whether they had to accommodate employees who use marijuana. The short answer is no. Colorado’s Amendment 20, which legalized medical marijuana, said employers do not have to accommodate the use of marijuana in the workplace. (Sales of recreational marijuana began in the state on Jan. 1.) And because the drug remains illegal under federal law, users cannot claim discrimination if they are fired for its use.

The California Supreme Court has taken the same position. It held in a 2008 case that it wasn’t unlawful under the state’s Fair Employment and Housing Act for a company to fire an employee with a medical marijuana card who tested positive for drug use. In Ross v. Ragingwire Telecommunications, the court reiterated that the Act does not give permission to use drugs that are illegal under federal law.

Off-Duty Use of Marijuana

Colorado’s businesses are awaiting a decision, expected this fall, from the state’s Supreme Court in a case brought by an employee who claimed he was wrongfully terminated under his company’s zero-tolerance drug policy for using medical marijuana when he was not at work. In Coats v. Dish Network, the worker claims he was covered by the state’s Lawful Activities Statute, which protects workers who engage in legal activities, such as smoking, when not at work. The Colorado Court of Appeals disagreed, and the employee appealed.

James Shore, a partner in the labor and employment practice of Stoel Rives in Seattle, says the state Supreme Court is expected to give “enormous weight” to the argument that marijuana use cannot be considered a lawful activity because it remains illegal under federal law.

Zero Tolerance …

Employment lawyers agree that the easiest standard to apply is zero tolerance because it’s so clear-cut. Zero tolerance may be the only option for companies that must comply with a customer contract or federal regulations barring any drug use, for example. (Though workers may fear they’ll fail drug tests if they inhale secondhand marijuana smoke at a concert or sporting event, that’s highly unlikely due to its very low concentration and their limited exposure.)

Businesses that take this route need to determine the details of testing, Shore advises. Will employees be subject to random testing, or will they be tested only if there’s reasonable suspicion that they’re impaired? Will they be fired if there’s any detectable amount of the drug in their system? Under what conditions are they eligible for a second chance or rehab?

Businesses with a California workforce that want to institute drug screenings should first verify whether any municipal rules bar that testing. For example, businesses based in San Francisco are prohibited from testing most employees unless there are reasonable grounds to believe that the worker is impaired or poses a safety risk. (Police, firefighters and ambulance drivers are excluded.) The law, which does not prohibit pre-employment screening, has been in effect since 1985 and applies to both city employees and employees of private businesses.

A zero-tolerance policy, however, may not be a practical standard for everyone. Some of Knapp’s clients in the restaurant and hospitality industries have told him that inflexible policies are impossible to implement. “I can’t have a zero-tolerance drug policy,” they tell him. “I want to have a workforce.” Other businesses may make a deliberate choice to accommodate medical marijuana users.

“Any time you step away from zero tolerance, the risks inherently increase,” Olmsted cautions, “and I think that would be the case with legalizing marijuana. But there are those who would say that it isn’t much different than alcohol, and as long as you have a well-drafted policy and supervisors who are willing to enforce it and identify situations with reasonable suspicion of being under the influence … There are employers who are making that choice.”

… Or Some Tolerance?

For businesses that do opt to loosen up, Knapp advises treating marijuana use like alcohol: It cannot be consumed during meal and rest breaks, and workers cannot report for their jobs under its influence. Olmsted suggests that company handbooks specify that medical marijuana may not be used at work and that workers may not bring marijuana to work or sell it or share it with co-workers.

Spelling out company policy and expectations in handbooks and training sessions is an essential part of educating the workforce. Workers should be required to sign off on the company’s substance-abuse policy, and it should be part of the training workers receive along with anti-harassment and anti-discrimination education. If a business operates in multiple states, make sure there’s a centralized review process that ensures consistency in policies, Shore says.

“People get confused, thinking legalized marijuana means you can use it whenever you want,” Knapp says. “I think there’s a mindset out there with employees that it’s really no different than getting a cup of coffee at Starbucks or going out on a smoking break. … It’s that sort of misperception that is incumbent upon the HR professional to educate their managers and employees that no, that’s not allowed.”

June D. Bell is a San Francisco-based journalist who has contributed to The National Law Journal, The San Francisco Chronicle and California Lawyer. Her website is junebell.com, and she can be reached at junebell@aol.com.

 

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