Just Because Marijuana Is Legal Doesn’t Mean You Can Imbibe at Work
Californians voted to legalize recreational marijuana in 2016 when they passed Proposition 64, making it the eighth state to do so. But that doesn’t mean employees can smoke, vape or use other cannabis products during work hours, or come to work under the influence.
The law protects those who possess and use marijuana from criminal prosecution. It does not, however, make it legal to use cannabis products at work. Employers can still enforce zero-tolerance drug policies and take appropriate action, up to termination. This also applies to routine or random drug testing.
Employees should also know that Prop. 64 makes marijuana use legal under state law; it does not change federal law, which still classifies marijuana as a Schedule 1 drug under the Controlled Substances Act, illegal for use or possession. And Prop 64 specifically allows employers to prohibit its use.
Employers can send home and/or discipline employees who are impaired or under the influence at work, regardless of when or where they consumed the marijuana. Just like alcohol or prescription drugs, any substance that affects an employee’s ability to do his or her job comes under scrutiny.
Employers are advised to have very explicit policies around the use of all substances that could affect job performance, and to ensure that employees are fully informed of those policies at regular intervals, not just at hiring time. Additionally, these policies should be enforced as written, and enforced uniformly, rather than on an ad hoc or case-by-case basis. This will safeguard the employer from claims that its drug and alcohol-use policies are applied in a discriminatory fashion.