Posted on February 3, 2017 in Employment Law
California Proposition 64 was passed by California voters on November 8, 2016. It’s commonly referred to as the Adult Use of Marijuana Act, and it passed by a margin of over 14 percent. The law now makes it legal for individuals 21 years of age or older to use and grow marijuana in California for personal recreational use. Medical marijuana had been legal in the state for more than 20 years.
With the passing of the measure, California now allows adults to possess and smoke up to 28.5 grams (an ounce) and eight grams of concentrated marijuana in a residence or at a business licensed for such consumption. He or she is allowed to grow up to six marijuana plants within a residence if the growing area is locked and cannot be seen from a public place. Smoking marijuana while operating a motor vehicle, smoking it in public places, or even merely possessing it on school, day care center or youth center grounds while children are present is still against the law.
As per the State of California legalization of marijuana, any business that intends to sell marijuana for purposes of recreational personal use must be licensed by the state. Local licensing might also be required. Any such businesses are prohibited from being located within 600 feet of a school, day care center or youth center. Municipalities are allowed to enact ordinances completely prohibiting the sale of marijuana within their boundaries.
Special taxes were imposed on growers and sellers of marijuana with Proposition 64. A cultivation tax of $9.25 per ounce was imposed for flowers along with a $2.75 per ounce tax for leaves. Limited exemptions to these taxes exist. A 15 percent tax was also levied on the sale of marijuana.
As with any newly passed proposition, it takes time to sort out the specific details. We’ve compiled a list of the most frequently asked questions regarding California’s legalization of Marijuana and it’s impact on employment laws in San Diego.
Implementation of Proposition 64 in its entirety will take some time. Recreational use of marijuana within the purview of Proposition 64 became legal at 12:01 a.m. on November 9, 2016. Growing and sales taxes won’t take effect until January 1, 2018. That’s when licensed retail establishments can begin selling marijuana for recreational use.
Under federal law and the Controlled Substances Act, marijuana is still a Schedule I drug, but the Obama administration didn’t treat it as such, and no action has been taken against states that have legalized its medicinal or recreational use.
California legalization of marijuana does not require an employer to allow an employee’s marijuana use. The law specifically states that it intends to allow both public and private employers “to enact and enforce workplace policies pertaining to marijuana.” Drug and alcohol-free workplaces are permitted. Employers are not required to accommodate marijuana possession, use or transfer in the workplace. Policies prohibiting the use of marijuana by employees or prospective employees are allowed to remain, and Proposition 64 is not intended to interfere with employers who are attempting to comply with state or federal law.
Yes, you can be fired for testing positive for marijuana use. That was the law before Proposition 64, and that’s the law after it was passed. The measure only addresses the criminality of cultivation, possession, sale and recreational use. An employer’s right to refuse to hire or fire based on evidence of marijuana use remains unaffected.
A California Supreme Court decision in 2008 upheld the right of an employer to refuse to hire a job applicant who had used medical marijuana pursuant to the advice of his doctor. Regardless of the fact that medical marijuana is legal in California, employers can still rely on federal law for purposes of implementing and enforcing drug use policies.
Having employees show up at work who are under the influence of drugs or alcohol is a legitimate concern for any employer. With impairment comes a higher likelihood that production quality will decrease while the possibility of a work-related injury increases. Perhaps the one thing that both the employer and employee might agree on is that marijuana stays in a person’s system long after its effects wear off. That raises the question of whether an employer can punish an employee for legal use of marijuana even though that employee’s productivity didn’t diminish, and he or she presented no danger to other employees or the general public.
For now, the answer to that question is that even in those states where recreational marijuana use is allowed, the drug and alcohol policies of employers are given wide deference. Employers should expect future challenges to that deference, so expect them to be updating their drug and alcohol testing policies to assure that employees clearly understand exactly what their employer expects of them.
If you believe that you have a workplace discrimination or wrongful termination case, you should contact a San Diego employment attorney right away. If you would like someone to review your case today, send us an email or call Walker Law at (619) 839-9978 to schedule your free consultation.