Employee rights and Marijuana
As the sale and use of Marijuana is becoming legal across the US, each state is forming new laws around it. Now that Marijuana is becoming legal for adults to use recreationally, where do we stand with our rights as an employee when it comes to Marijuana use?
Proposition 64, or the Control, Regulate and Tax Adult Use of Marijuana Act contains a set of newly introduced and complicated regulations surrounding the sale and use of Marijuana. The proposition covers the following:
Under state law a person over the age of 21 can legally possess, process, transport, smoke, purchase, obtain or give away to people 21 years or older, without compensation 28.5 grams of pot or not more than 8 grams of concentrated cannabis.
Additionally, it is legal to grow and harvest up to six marijuana plants. And what about consuming marijuana? Marijuana cannot be consumed on sites where tobacco is banned, or within 1,000 feet of a school, day care center or youth center. And you may not consume marijuana while operating or riding in a motor vehicle.
The repercussions of consuming marijuana in public are not severe and may incur a fine of up to $100.
The new law establishes a taxation structure in which businesses selling marijuana will pay a 15% tax on their gross profits. Adult usage will be regulated and taxed by a new taxation authority. Starting in 2018, ten million dollars will be given yearly to California universities for 10 years to research and analyze the effects of the new legislation, including public health and economic implications, and to offer recommendations to the Legislature and Governor on any modifications to the law.
A person serving a sentence for a conviction, whether by trial or open or negotiated plea, who would not have been guilty of an offense or would have been convicted of a lesser charge under the new legislation may apply for a recall or dismissal of their sentence based on the new law’s consequences.
However, when it comes to employee rights, employers are still permitted to establish their own drug policy and drug test employees. This is partly due to the fact that the legality of marijuana is not federal. “No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law.” (Ross v. Raging Wire Telecommunications (2008) 42 Cal.4th 920, 926; citing 21 U.S.C. §§ 812, 844(a)). An employer can require prospective employees to undergo testing for illegal drugs and alcohol, and the employer can have access to the test results, without violating California’s Confidentiality of Medical Information Act (Cal. Civ. Code, § 56 et seq.). In Loder v. City of Glendale (1997) 14 Cal. 4th 846, the California Supreme Court held that “employers may deny employment to persons who test positive for illegal drugs.”