Recreational Marijuana Is Now Legal in California: How Does This Affect Employer Workplace Drug Policies?

In what might once have been viewed as a remarkable development, but now generates little surprise, recreational marijuana use is now legal in California. On November 9, 2016, Californians approved Proposition 64, known as the Control, Regulate and Tax Adult Use of Marijuana Act (the Act), legalizing the recreational use of marijuana. Contrary to California’s typical position as a legislative frontrunner, the Golden State is bit more of a follower here, joining several other states, including Colorado, Oregon and Washington, where the personal possession and use of marijuana has already been decriminalized. Maine, Massachusetts and Nevada also recently passed recreational use laws, which have not yet taken effect.

Impact of the Control, Regulate and Tax Adult Use of Marijuana Act

The Act amends, repeals, and adds sections to California’s Business and Professions Code, the Food and Agricultural Code, the Health and Safety Code, the Labor Code, the Revenue and Taxation Code, and the Water Code. The Act does not alter California’s existing medical marijuana law, the Compassionate Use Act of 1996.

The Act legalizes recreational marijuana use for adults aged 21 or older under California state law and establishes certain taxes on the cultivation and sale of nonmedical marijuana, including marijuana products. While the recreational use provisions are effective immediately, other tax and licensing provisions of the law will not take effect until January 2018.

Under the Act, it is legal to smoke marijuana in a private home or at a business licensed for on-site marijuana consumption. Smoking marijuana remains illegal while driving a vehicle, in all public places, and anywhere smoking tobacco is. The law makes it legal to possess up to roughly one ounce of marijuana; however, possession on the grounds of a school, daycare center, or youth center while children are present remains illegal. Individuals are permitted to grow up to six plants within a private home, as long as the area is locked and the plants are not visible from a public place.

Marijuana businesses will need to acquire a state license to sell marijuana for recreational use and local governments can also require businesses to obtain a local license and can restrict where such businesses can be located. Local governments are also allowed to completely ban the sale of marijuana from their jurisdictions.

What the Adult Use of Marijuana Act Means for California Employers

Marijuana (whether for medical or recreational use) remains illegal under federal law. This is the foundation for understanding how California’s recreational and medical marijuana laws affect—or don’t affect—employer policies. In short, employers can continue to rely on federal law and enforce their workplace substance abuse policies. Also, the Act itself explicitly allows public and private employers to enact and enforce workplace policies pertaining to marijuana, including any drug-testing policies.

Nothing in the Act is intended to affect or interfere with the rights and obligations of employers to maintain a drug-free workplace or to require an employer to accommodate the use or possession of marijuana in the workplace. Employers may continue to have policies prohibiting the use of marijuana by employees and prospective employees, and the Act does not prevent employers from complying with state or federal law.

In California, employers can require job applicants to pass a drug test as a condition of employment, provided they test all applicants for particular job positions and do not single out certain applicants based on protected characteristics. Drug tests performed after an individual has been hired are permissible if there is reasonable suspicion that the worker is under the influence, in certain safety-sensitive jobs, or pursuant to a narrowly-tailored, post-accident testing policy. In the case of a positive drug test, California employers have the discretion to not hire an applicant, or to discipline an employee, up to and including termination of employment. This is the case even if the individual has been prescribed marijuana due to a medical condition. In the 2008 case, Ross v. RagingWire Telecommuns., Inc., the California Supreme Court upheld the right of an employer to fire an employee who failed a pre-employment drug test as a result of marijuana use recommended by his physician. The court found that employers are not required to accommodate an employee’s medicinal marijuana even though such use was legal in California under the Compassionate Use Act of 1996. (It seems logical that the Ross v. Ragingwire decision might be tested on appeal down the road, but for the present, it is good law.) Likewise, the legalization of recreational marijuana use under the Control, Regulate and Tax Adult Use of Marijuana Act does not require employers to accommodate such use by their employees.

Further, any employers who contract with or receive grants from the State of California are required, under California’s Drug-free Workplace Act of 1990 to certify that they provide a drug-free workplace.

Similarly, any employers who enter into a federal contract for the procurement of property or services valued at $100,000 or more, or receive any federal grant, must follow the regulations of the Drug-Free Workplace Act of 1988.

What Actions, if Any, Should Employers Take?

While the Act does not prevent employers from continuing to rely on federal law and enforce their workplace substance abuse policies, in light of California’s recent legalization of recreational marijuana use, employers may want to consider updating their policies to clarify any expectations with respect to employee marijuana use—but again, this new law should not meaningfully impact such expectations or policy.

What Action Might the Federal Government Take, Given that Marijuana Remains Illegal Under Federal Law?

This is very much an open question. Despite frequent calls for changes to the federal Controlled Substances Act of 1970 (the CSA), marijuana remains a “Schedule 1” banned substance. The issue, then, is not so much any contemplated change in the CSA, but enforcement of it (or not). Although the Department of Justice (DOJ) under President Obama has not prosecuted most individuals and businesses following state and local marijuana laws, it remains to be seen whether the DOJ’s approach will change under the Trump Administration. Even if the Trump Administration’s DOJ does change its approach, however, and increases enforcement efforts, this likely will not impact employer drug-related policies for the reasons discussed above.

-Erin Dolly

E-Cigarettes Banned In Some California Workplaces

Electronic cigarettes are battery-operated devices that emit vaporized doses of nicotine (or non-nicotine) that is inhaled.  The vapor produced by e-cigarettes is smokeless and does not contain the amount of harmful chemicals that regular cigarettes have.  Many fans of electronic cigarettes credit these devices with helping them to cut down on or quit smoking altogether. Continue reading

Senate Confirms 5 Members Of NLRB, Leaving It With A Quorum

For the first time since January 2012, the National Labor Relations Board (NLRB) unquestionably has a quorum to issue rulings.  This comes on the heels of the U.S. Senate’s votes yesterday to confirm a 5 members of the Board, three of whom are labor-friendly and two of whom have a management background.  They are: Mark Gaston Pearce, the current Board Chairman whose term was set to expire in August; Kent Hirozawa, Pearce’s chief counsel; Nancy Schiffer, a retired associate general counsel at the AFL-CIO; and Philip A. Miscimarra and Harry I. Johnson III, both partners at large law firms.  The votes for the Democratic nominees were along party lines.

Continue reading

NLRB Lacks Quorum To Act

Take a look at our recent e-Alert on the decision of the U.S. Court of Appeals for the D.C. Circuit, which found that President Obama’s recess appointments to the National Labor Relations Board were imrpoper and, as a result, the Board did not have a quorum to issue any of the decisions it issued since the appointments were made over a year ago.  This stunning decision potentially invalidates all of the controversial decisions reached by the Board in the past year, many of which we have already blogged about (here, here, here, herehere, here, and here).

- Dan Handman  (Los Angeles)

NLRB Reverses Course On “At-Will” Employment Policies

You may have been surprised when, a few months ago, an Administrative Law Judge (ALJ) for the National Labor Relations Board in Phoenix, AZ turned the world of employment law on its head by finding that an unremarkable at-will employment policy in an employee handbook violated the Act.  In that case, the ALJ held that the absolute at-will provision constituted a waiver of the Section 7 right to engage in concerted activity to change employees’ at-will employment status, and was therefore unlawful.

On October 31, 2012, the NLRB backtracked.  In two different “Advice Memos” (found here and here) the NLRB’s Department of Advice reversed course finding that two at-will policies were consistent with the Act and did not infringe on Section 7 rights.  Those memos focused on whether an at-will employment provision in the handbooks of Rocha Transportation, a California Central Valley shipping company, and SWH Corp., which operated an Arizona restuarant, violated Section 7 of the National Labor Relations Act (the “Act”), which provides employees the right to organize and/or engage in other concerted activities.  The General Counsel concluded that the language did not violate Section 8(a)(1) of the Act, which prohibits rules or policies that would “reasonably tend to chill employees in the exercise of their Section 7 rights.” 

The General Counsel concluded that Rocha’s at-will employment language could not be reasonably construed to restrict Section 7 rights because it did not require employees to “refrain from seeking to change their at-will status or to agree that their at-will status cannot be changed in any way.”  The most critical point of the General Counsel’s analysis, however, was that “the provision explicitly permits [Rocha’s] president to enter into written employment agreements that modify the employment at-will relationship….”  The General Counsel stated that this provision allowed for collective bargaining to change the at-will employment, which could result in a collective bargaining agreement that is then ratified by the president of the company.  While this Memorandum does not carry the same precedential effect as a court or NLRB decision, it does provide a window into the NLRB General Counsel’s thinking on the at-will employment issue.  In light of this Memorandum, employers should review their at-will employment policies to ensure that they allow for some senior officer or manager to alter or amend an employee’s at-will employment status. 

- Rob Flemer (Los Angeles)

NLRB Approves Of The Use Of Profanity And Harassing Conduct In The Workplace

In the midst of a union decertification campaign, a union supporter made anonymous, vulgar statements about the employer.  On a union newsletter, he wrote “Dear Pussies, Please Read.”  On another union newsletter, he wrote “Hey cat food lovers, how’s your income doing?”  And on a third newsletter, he wrote “Warehouse workers, RIP.”  After receiving complaints from several female employees, his employer learned through an investigation that one male employee had written all of those anonymous comments — in fact, he ultimately admitted doing so.  He was fired and he challenged his termination with the NLRB, claiming that he was fired for engaging in protected, concerted activity.

The Board found that these vulgar and potentially threatening statements were not “so egregious” as to lose protection under the National Labor Relations Act.  In reaching that conclusion, the Board focused on three factors: (1) the writings were made in a work area; (2) they were made during a union campaign; and (3) on one prior occasion, an employee had affixed a sticker to a piece of equipment that said “Don’t be a dick.”  It ordered the employee reinstated with backpay.

The Board acknowledged that the comments were “vulgar” and “demeaning to women,” but apparently gave no weight to that, finding instead that it was “part of the res gestae [the sequence of events] of otherwise protected activity.”  Implicitly, the Board ignored precedent from federal appellate courts chiding it for similar rulings that were found to be “preposterous” and not “reasonably defensible.”

This decision, while likely to be reversed by an appellate court, is notable because it seemingly puts employers in a “Catch 22″ upon receiving complaints about offensive or harassing conduct during an organizing campaign.  Ordinarily, the law would encourage employers to conduct an investigation and discipline those responsible for such conduct, but this decision cautions against that common sense conclusion.

- Dan Handman (Los Angeles)