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Recreational Marijuana and Work Place Drug Policies

Posted January 2018 by S. Ward Heinrichs

Recreational Marijuana and Work Place Drug PoliciesJanuary

In 2016, California voters made legal the cultivation, use, possession, transfer, and sale of recreational marijuana. The law went into full effect on January 1 of this year. It allows local governments to regulate the sale of marijuana and to even ban the sale of it. Some local governments have banned its sale, while others have passed regulation that govern how dispensaries will sell and transport it.

How will this new law effect business drug policies? A provision in the new law allows businesses to continue to completely ban marijuana use at work, to test applicants and present employees, and to terminate employees and refuse to hire applicants who violate business drug policies:
Section 11362.1 does not amend, repeal, affect, restrict, or preempt:

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 the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law. (Health and Safety Code §11362.45 (f).)

Clearly, businesses may maintain drug free work places. Additionally, the law does not prevent, and legally cannot prevent, an employer from complying with federal law. Federal law still classifies marijuana as a Schedule 1 controlled substance. As such, it is still illegal to possess, use, sell, and transport marijuana. Even if the federal government were to declassify marijuana as a controlled substance, the above provision still appears to grant employers the right to have a drug and alcohol free work place. At the very least, businesses that contract to do work with state and federal governments, must maintain drug free work place policies because such policies are required under both state and federal laws. Similarly, businesses engaged in commercial transportation must have drug free work policies and test employees for drug use.

Before the recreational use of marijuana law was passed, the California Supreme Court ruled that employers could test applicants who were allowed to use medical marijuana. If an applicant failed the marijuana test, the employer had the right to not offer a job to the applicant even though the applicant was using marijuana legally. (Ross v. RagingWire, (2008) 42 Cal. 4th 920.) That right still exists.

Employers who maintain drug free work policies should clearly communicate that their policies have not changed. California employees may not know that the new recreational use law does not change the way employers enforce those policies and that all the old rules, unless changed by the employer, still apply.


S. Ward Heinrichs, Esq.
Employment Law Office of Ward Heinrichs
4565 Ruffner Street, Suite 207
San Diego, CA 92111
858-292-0792
(858) 408-7543 (fax)

Employment Law Office of WARD HEINRICHS

4565 Ruffner St. Suite 207 San Diego 92111

858-292-0792

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