On November 8, California voters approved Proposition 64, the Adult Use of Marijuana Act, legalizing marijuana in the state, though marijuana remains illegal under federal law. Adults over the age of 21 in California are now allowed to possess, transport, and purchase up to one ounce of marijuana and grow up to six plants for recreational use. 

So how will legalizing marijuana affect California employers? Prop 64 explicitly states that it still “allow[s] public and private employers to enact and enforce workplace policies pertaining to marijuana." Specifically, Prop 64 states that it is not to be construed nor interpreted to:

• Restrict the rights and obligations of public and private employers to maintain a drug and alcohol-free workplace;
• Require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace;
• 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.

Proposition 64 (codified at Health & Safety Code section 11362.45(f)).

This means that, although Prop 64 decriminalizes adult use of marijuana, California employers can still ban it in the workplace. The legalization of marijuana will not impact drug-free workplace policies prohibiting marijuana use and will not require employers to accommodate recreational marijuana use.

In addition, federal law continues to designate marijuana as a Schedule I drug under the Federal Controlled Substances Act. This means that under federal law, employers are permitted (and even required in certain industries) to prohibit and test for marijuana.

For example, when medical marijuana became legalized in California, the California Supreme Court dealt with the issue of whether employers must accommodate medical marijuana use or whether firing an employee for off-duty medical marijuana use (based on a pre-employment drug screen) constitutes disability discrimination. The Court upheld the termination, concluding that there is no duty to accommodate such use because marijuana remains illegal under federal law. (Ross v. RagingWire Telecommunications, Inc., 42 Cal.4th 920 (2008).)

Given the overlapping state and federal laws, we recommend that employers assess with their legal counsel how best to comply considering the requirements of their industries and the nature of the positions at issue.