On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
Lawsuit Prevention for Employers
GOING TO POT – CALIFORNIA’S MARIJUANA REFORM LAW
In November, 2016, California adopted Proposition 64, “The Adult Use of Marijuana Act.”
In essence, the new law legalizes marijuana use by those over 21 years of age.
Provisions of the new law directly address marijuana in the workplace. This is found in section 4.8 of Proposition 64, now codified in section 11362.45(f) of the Health and Safety Code.
This section expressly provides that the new law does not restrict:
“The rights and obligations of public and private employers to maintain a drug and alcohol-free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace, or affect the ability of employers to have policies prohibiting use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.”
Significantly, the passage of Proposition 64 does not affect federal law, which continues to prohibit the possession, use and sale of marijuana.
As a result, the passage of Proposition 64 does not affect the ability of California employers to enforce carefully-drafted drug-free workplace policies, even as these relate to the recreational or medical use of marijuana.
Accordingly, while Proposition 64 removes certain regulation of marijuana in limited situations, it does not restrict the right of employers to prohibit marijuana use in the workplace.
This fact, in conjunction with a California Supreme Court ruling in 2008 that rejected a claim that employers are required to hire applicants who tested positive for medical use of marijuana, suggests that Proposition 64 will not affect the ability of employers to administer otherwise-lawful drug testing policies.
However, it is recommended that employers review and revise drug and alcohol policies to ensure consistency with the new law.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over three decades. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives.
While no one can guarantee a future free of lawsuits, Putnam has compiled a remarkable record of success: Not one employer-client has been sued in 36 years with his system of precautions in place.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. www.jaygputnam.com/articles-by-jay-g-putnam/