Marijuana and the workplace

An in-depth look into the limitations of Prop 64

Prop 64 Limitations

CENTRAL COAST, Calif. - Proposition 64 passed in November, making it legal to possess marijuana.


So now what?


Even though possession laws have changed, your employer’s view of the drug might not have — and using it off the clock could be a breach of company policy. 


According to Santa Maria Attorney Michael Clayton, Proposition 64 succeeded on the 2016 ballot because it’s limited and does not create new rules in the workplace. 


“Prop 64 says lets legalize marijuana and move from there,” said Clayton. “Everything is uncharted ground. One step at a time. Baby steps as we go."


Clayton points to a failed 2010 Ballot Measure, Prop 19 which prevented employers from disciplining or firing employees who use marijuana.


California’s new pot law also does not protect workers with medical marijuana cards. 


In 2008, the California Supreme Court ruled in favor of the employer in the case of Ross vs. Raging Wire.

Gary Ross, an employee who had a medical marijuana card, was fired following a positive drug test. He then filed an anti-discrimination lawsuit against his former employer. But the courts ultimately ruled in the company’s favor citing federal law which classifies marijuana as an illegal drug.


Many employers will drug test an employee if they are involved in a car accident while driving a company vehicle — even if that employee was not at fault. But, any time an employee is injured on the clock while operating company equipment, the employer assumes responsibility, even following a positive drug test, Clayton said.


“The employer has to have reason to believe that you were under the influence of a substance that impaired your ability to do the job,” said Clayton.


Clayton advises against employees from skipping their test.


“If an employee is asked to test and the employee misses it, the court sees it as a dirty test,” said Clayton.


Testing regulations are mandatory for the transportation industry. Several other federal agencies also have employee drug testing programs. The Department of Defense tests all employees in security-sensitive positions including truck drivers, airline crews, train crews, and pipeline employee, Deputy Director Ellen Komp of the National Organization to Reform Marijuana Laws - California Chapter said.


But not all employers drug test employees. 


According to Select Staffing, a job placement agency in Santa Barbara, only 20-percent of their clients require tests for new hires. Many who don't test fear losing good employees, Select Staffing Recruitment Director Nancy Lavender said.


"This isn’t a federally passed law,” said Select Staffing Assistant Kylie Kelleher. “So it's not a safe haven just because you have a medical marijuana card."


But, if a qualified candidate with a good resume fails their drug test, Select Staffing will still use their discretion to place that candidate with an employer who does not drug test, Lavender said.


“They can need it [marijuana] for medical purposes and still be a great employee,” said Lavender. “But they just might be in a position where they have to take it."


That’s why Ellen Komp recommends impairment tests over drug tests. 


“Drug testing has never been show to improve workplace safety,” said Komp.” It doesn’t measure actual impairment.”


Since Proposition 64 has passed, Komp has received many calls from workers asking about workplace protections.


“Unfortunately, the way Prop 64 was written, employment rights are not protected,” said Komp.


According to Komp, NORML is currently launching a campaign to add protections to marijuana users in the workplace starting with lobbying days in early march.


But until marijuana consumption is protected by anti-discrimination laws, steady users remain vulnerable despite California legalizing it.


“If you want a job, you better test clean,” said Clayton. “And if you don’t like the rules your employer is throwing down, you can always walk out the door.”


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