CA: If Prop. 64 Wins, Employers Can Still Ban Marijuana


If California’s pot proposition passes, employers will maintain a large say – maybe the largest – in determining whether workers partake in the substance, even away from the job.

Prop. 64’s bid to legalize recreational marijuana contains provisions allowing public and private employers to maintain a drug-free workplace and test for marijuana, which stays in a person’s system for several days or longer. A Colorado initiative legalizing marijuana, passed by voters in 2012, also allows employers to maintain their own policies.

The Colorado State Supreme Court later upheld an employer’s right to fire a worker over medical marijuana used off-duty.

In California, observers predict many companies will keep current marijuana policies if Prop. 64 maintains what polls show as a solid lead. At Limoneira, a 650-employee citrus grower in Santa Paula, the speculation is spot-on, said CEO Harold Edwards.

"If it’s in your system, you don’t get a job. That’s our policy and it won’t change," Edwards said, acknowledging the stance could make it harder to find workers if the proposition increases the number of people who use marijuana. "It’s just another hurdle we have to clear."

The provision giving employers the right to keep or create their own marijuana policies is needed because marijuana remains illegal under federal law, said Jason Kinney, spokesman for the campaign for 64. The state measure was crafted with input from the California Chamber of Commerce and is designed to allow companies to continue to receive federal grants that require drug-free workplaces.

Kinney also cited Proposition 19, the failed attempt to legalize marijuana in California in 2010. That proposal would have allowed employers to take action against workers for marijuana use if the substance impaired job performance.

"That was viewed as one of the fatal flaws," said Kinney. "It was viewed as creating extraordinary legal uncertainty around workplace protections.

The new proposal doesn’t draw a line at job performance. It states the law will not affect a company’s ability to "have policies prohibiting the use of marijuana by employees and prospective employees."

The ability of companies to use the provisions will depend on the drug testing programs sometimes used before a worker is hired, as part of a workers comp claim and due to erratic behavior or another reasonable suspicion.

"The employer is just not going to know about it unless there’s drug testing," said Los Angeles employment lawyer Jennifer Mora.

Mora said companies should make sure their marijuana policies are unambiguous and predicted most companies will not do more than tweak current standards.

When Colorado’s law passed, employers became more likely to use drug testing, said Curtis Graves, an attorney with Mountain States Employers Council in Denver. But as employers found it harder to find workers because of Colorado’s low unemployment, testing dwindled.

"A lot of people are not testing pre-employment for marijuana, but they’ll keep it in their testing policies for things like reasonable suspicion," he said.

In Ventura County, some employers did not return messages about Proposition 64. Others said they’ve had no discussions about workplace policies for marijuana. Bill Nash, public information officer for the County of Ventura, said policies in county government likely wouldn’t change if the proposition were to become law.

"We would expect to see limitations very similar to what’s in place for alcohol and illegal drug use," he said.

Chelsea Sutula doesn’t have a problem with Prop. 64’s provisions for employers.

"I think this is a compromise that is necessary," said Sutula, president of the Sespe Creek Collective, which delivers medical marijuana in Ventura and Santa Barbara counties. She’s hopeful employers will look at marijuana similarly to alcohol and focus on use on the job, not away from the workplace.

The companies that contact the California Employers Association are focused on changes to the Fair Labor Standards Act that affect overtime. They’re not asking about the pot prop, perhaps because there’s no mandate to change their policies.

"We’ve had no calls on it," said Kim Parker, president of the human resources association. "We’ve had no people beating down doors."

News Moderator: Katelyn Baker
Full Article: If Prop. 64 Wins, Employers Can Still Ban Marijuana
Author: Tom Kisken
Contact: 805-437-0000
Photo Credit: Sean Gallup
Website: Ventura County Star