Marijuana Legalization Under California's Proposition 19: The Impact on Employers

California's Proposition 19, which, if approved by voters on November 2, 2010, would legalize various marijuana-related activities in California, has already generated a great deal of national attention.  In addition to vocal endorsements and opposition within California, in recent days U.S. Attorney General Eric Holder stated, in a letter to former federal drug enforcement chiefs, that, even if Proposition 19 passes, the federal government will "vigorously enforce" federal law (such as the Controlled Substances Act) making marijuana illegal.   Given the likely inconsistent enforcement of marijuana laws nationally and in the state if the proposition passes, the implications for employers in California continue to be a source of speculation. 

If passed, Proposition 19, also known as the Regulate, Control and Tax Cannabis Act of 2010, would take effect the day after the election, November 3, 2010.  It allows persons 21 years of age or older to personally possess, process, share or transport not more than one ounce of marijuana, solely for that individual's personal consumption and not for sale.  In addition, Proposition 19 also allows for the cultivation of marijuana on private property and the possession of objects, tools and other items associated with cultivating or consuming marijuana.  Several provisions of Proposition 19 could impact employers and their ability to regulate the workplace, including:

• Consuming Marijuana at Work – Proposition 19 renders lawful "personal consumption" of marijuana, defining personal consumption very broadly to include possession and consumption in a residence or any other "non-public place."  Although Proposition 19 states that it is not intended to affect "any law prohibiting use of controlled substances in the workplace," if a workplace is not covered by such a law, it would potentially be subject to the protections of Proposition 19.  If California courts interpret "non-public place" as narrowly as they have under other aspects of California law (including one recent case where a grocery store was found not to be a public place), it is possible that this provision could be interpreted to provide a right to consume marijuana in the workplace.  Adding to this concern is the fact that current anti-smoking laws generally only apply to tobacco products, meaning that marijuana would not be covered under most such laws.  On the other hand, federal and California Occupational Safety and Health requirements that employers maintain safe workplaces may serve to narrow the interpretation and application of Proposition 19 in relation to employees using, or being under the influence of, marijuana in the workplace.
  
  
• Protected Right to Consume Marijuana? – Proposition 19 states that no person shall be punished, fined, discriminated against, or "denied any right or privilege" for engaging in conduct protected by Proposition 19.  It is unclear at this point how broadly this provision would be interpreted, but the general and sweeping prohibition against discrimination or the denial of "any right or privilege" could be interpreted as giving marijuana consumers a protected right to consume marijuana, even in the workplace, without repercussions to employment.  At a minimum, it may be difficult or impossible for employers to prevent their employees from bringing marijuana to work or sharing marijuana with co-employees.
  
  
• Addressing Marijuana Consumption That Impairs Job Performance – Proposition 19 states that "the existing right of an employer to address consumption that actually impairs job performance by an employee shall not be affected."  Although the full impact of this language is unknown at this time, this language could be read to limit an employer's ability to address marijuana consumption to only those situations where the consumption actually impairs the job performance of the employee.  Because Proposition 19 does not define "actually impairs," and to the extent marijuana use is viewed as a protected right (as discussed above), an employer runs the risk of violating that protected right if it tries to address marijuana consumption without proof that such consumption "actually impairs" the employee's performance.
  
  
• Interaction with Federal Laws – As mentioned above, U.S. Attorney General Holder has already stated that federal criminal laws against marijuana will still be enforced, regardless of Proposition 19.  What is less clear is how Proposition 19 will impact other federal laws.  For example, if the protections under Proposition 19 are broadly interpreted, they might make it impossible for government grantees and contractors to comply with both California law and the federal Drug Free Workplace Act, which could lead to the loss of federal grants and contracts to California institutions.
  
  
• Implications for U.S. Department of Transportation Controlled Substances Requirements – The impact of Proposition 19 on drivers and others covered by the controlled substances prohibitions and testing mandates of the U.S. Department of Transportation, which cover marijuana, is uncertain as well.  It may be significant that Proposition 19 is not intended to affect "any law prohibiting use of controlled substances . . . by specific persons whose jobs involve public safety."  Likewise, Proposition 19 "shall not be construed to affect, limit or amend any statute that forbids impairment while engaged in dangerous activities such as
  driving . . . ." Furthermore, the phrase "personal consumption" does not include, and Proposition 19 does not permit, "consumption by the operator of any vehicle, boat or aircraft while it is being operated, or that impairs the operator."  In the end, employers will have strong arguments that federal controlled substances prohibitions and testing requirements covering drivers and others engaged in the safe operation of vehicles in interstate commerce will preempt Proposition 19 in relation to such individuals.

Given the quick implementation date for Proposition 19 if it passes, employers need to be ready to adapt very quickly to this new and broad provision.  Employers should start thinking now about how they will approach questions and decisions regarding marijuana use in order to carefully walk this tightrope between California and federal law. We believe that the proper inquiry for employers is an industry-specific analysis of the obligations to maintain a workplace free from marijuana, in light of federal and/or state regulatory mandates that might conflict with the provisions of Proposition 19. Once these industry-specific obligations have been identified, guidance can be provided for operation within a potential Proposition 19 environment. In order to manage potential use of marijuana in the workplace, or outside the workplace affecting the workplace, employers may consider implementing a policy requiring employees to comply with applicable state and federal law at the workplace or in relation to their work, including, but not limited to, the federal prohibition of the possession or distribution of marijuana.

As a result of the potential conflict between federal law and Proposition 19, if it passes, employers should seek the advice of counsel before attempting to navigate through this shifting landscape. For more information, please contact the professionals listed to the left or your regular Crowell & Moring contact.