November 16, 2020

Under the Marihuana (actual spelling) Tax Act of 1937, U.S. federal law regulated the use of cannabis until the law prohibited it under the Controlled Substances Act of 1970 (“Act”). Under the Act, cannabis was classified as a Schedule I drug, alongside heroin, LSD, and peyote. Since 1996, California has been the forerunner in pushing for decriminalization of cannabis. For more information regarding the timeline toward decriminalization in California, please read The Timeline of Cannabis Legislation in California.

While California continues to be an advocate for the cannabis industry, several problems may arise due to the intoxicating nature of cannabis. The intoxicating characteristics of cannabis present the problem of workers using the substance and potentially endangering themselves or their coworkers. As of the date of this article, research remains inconclusive regarding the likelihood of a worker testing positive for cannabis being more likely to be involved in a workplace accident.

Even though California now regulates cannabis as a legal substance, California does not require employers to accommodate on-duty use, possession, or impairment. [Ross v. Ragingwire Telecommunications Inc. (2008) 42 Cal.4th 920, 926.] In fact, an employer may require a drug-free workplace, which prohibits the use or intoxication from legal cannabis (the same would also apply to alcohol consumption). California does not provide any protection to employees from adverse employment actions for off-duty use of cannabis.

How could an employer find out if an employee is recreationally using cannabis? An employer may still require an applicant/employee to submit to a drug test, pursuant to Proposition 64.

Proposition 64

Under Proposition 64, the Marijuana Legalization Initiative Statute (codified at Health and Safety Code sections 11018, 11081.1, and 11018.2), California legalized cannabis for adults 21 and older in small amounts. In addition, California legalized the cannabis industry to become a licensed industry. Proposition 64 did not, however, alter federal law, remove the right to a drug-free workplace, or alter existing law regarding drug testing by an employer.

Under Proposition 64, a person may now legally possess up to 28.5 grams of marijuana (formerly an infraction) or 8 grams of concentrated cannabis (formerly a misdemeanor). Adults ages 21 and up may now cultivate up to 6 marijuana plants (formerly a felony). If an adult is found in possession of cannabis for sale, without a business license, the first two offenses will be misdemeanors, as opposed to felonies.

While Proposition 64 did lessen criminal offenses for the legal possession and sale of cannabis, it also created legal limitations on consumption.

Where can a Person Legally Use Cannabis?
Cannabis may not be consumed in any public place, unless that place is licensed for legal consumption. Even within licensed retailers, the areas for consumption must be restricted to people 21 and over, the consumption must not be visible to those in public, and alcohol may not be consumed or sold on the premises. Cannabis consumption in private homes remains the easiest option for consumers.

Maintaining a Drug-Free Workplace
If an employer would like to maintain a drug-free workplace, an employer should ensure all handbooks and written policies have broad drug policies, to prohibit cannabis usage under Proposition 64. Eskridge Law is here to help with employee handbooks. For more information on employee handbooks, please read Top Five Reasons Every Business Needs an Employee Handbook.

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net). Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.