By Peter Hetch
Six months have passed since California voted in favor of Proposition 64, the recreational marijuana initiative that allows adults 21 and over to possess up to an ounce of marijuana and cultivate up to six plants indoors. And in another six months, state-licensed marijuana stores will begin selling pot purely for adult fun.
What will this mean for weed and the workplace? Can you gather with employee pals for a Friday night toke – instead of the regular beers – and not worry about any consequences on Monday morning? Can you spark up a joint or savor a vape pen on your lunch hour? What about drug testing?
The simple answer: It all depends on where you work.
Employers may still enforce drug-free workplace rules for cannabis even with marijuana legalization in California. Companies can still drug test you for pot and fire you or refuse to offer you employment if you test positive.
The United States Transportation Department, for example, bans pot use for transportation workers from airline pilots to school bus drivers. Also, with pot federally illegal, agencies can restrict contractors doing federal government business from allowing marijuana use by workers – even in legal cannabis states.
The following FAQ is for people curious about using marijuana but worried about what it could mean for their jobs. Attention, California state workers: You will want to read to the end.
Q: Proposition 64 made the recreational use of pot legal. So why can it still threaten employment?
A: The last time California considered legalizing marijuana for recreational use, backers of Proposition 19 inserted language that said employers could fire workers for being impaired on the job – but couldn’t dismiss them for merely for having consumed marijuana.
That 2010 initiative went down to defeat, thanks in part to heavy opposition from the California Chamber of Commerce and business groups worried about an uptick in stoned workers. This time around, backers of Proposition 64 inserted unambiguous language giving more power to employers, and the chamber was neutral on the initiative.
Proposition 64 explicitly allows “public and private employers to enact and enforce workplace policies pertaining to marijuana.” In other words, you can be dismissed for consuming even if it’s on your own time and away from work, if that’s your company’s policy. So before you partake, you should know specifically what your employer does or doesn’t allow.
There may be weed-friendly companies out there, including marijuana producers themselves. But even many pot businesses, such as dispensaries and edibles manufacturers, don’t want employees consuming during the work day.
Q: But what about people with a doctor’s recommendation to use marijuana for a medical condition? Employers can’t prohibit them from taking their medicine, right? Or fire them?
A: In California, there are no workplace provisions protecting the rights of medical marijuana patients. There is no law requiring accommodation for medicating on the job or protection from termination.
In fact, the state Supreme Court has ruled that companies can fire workers who fail drug tests even if they present evidence of a doctor’s recommendation for legal medicinal use.
In a landmark case, Carmichael resident Gary Ross was fired after 10 days as a lead systems administrator for a Sacramento firm RagingWire Telecommunications. Ross, an Air Force veteran, made no secret when he was hired – and drug tested – that he had a medical marijuana recommendation for service-related back-pain and spasms. But he was let go anyway as soon as his pre-employment drug test came up positive.
In 2008, the Supreme Court rejected Ross’ claim of job discrimination under the California Fair Employment and Housing Act. It said California’s 1996 Proposition 215 medical marijuana law contained nothing “to address respective rights of employers and employees.”
Four states – Arizona, Delaware, New York, and Minnesota – offer limited anti-discrimination protections for people with doctors’ recommendations for medical marijuana use. The rules require that employers demonstrate impairment on the job rather than just a positive test for pot, which can stay in the system for days or weeks.
Q: What about California state workers?
A: Forty-one California state agencies can test various employees if there is “reasonable suspicion” of alcohol or drug use, including marijuana. Employees can be dismissed, depending on test results. The purpose of the policy is “to help ensure that the state workplace is free from the effects of drug and alcohol abuse.”
The alphabetical list spans from the Air Resources Board to the Department of Water Resources and includes the departments of Corrections, Rehabilitation and Motor Vehicles, the Lottery Commission, California Public Employee Retirement System and the State Fair.
So in the Golden State, pot impairment indeed can impair your job stability. You may be subject to drug testing at employers’ discretion and dismissal with positive test results, even with legal recreational weed or a personal doctor’s note for medicinal use.