(September 22, 2010) Proposition 19, the marijuana initiative on the November ballot, will have a detrimental impact on California employers, the California Chamber of Commerce testified yesterday at a joint hearing of the Assembly and Senate Public Safety committees.

In August, CalChamber released a legal analysis highlighting that the passage of Proposition 19, the Regulate, Control and Tax Cannabis Act of 2010, not only would legalize pot use in California, but also would create a legal quagmire for employers by compromising workplace safety and establishing a new class of protected workers in the state.

Proposition 19 seeks to legalize the cultivation, processing, transportation, distribution, and sale of marijuana for personal use in California. However, the measure is written in a way that blurs the line for employers regarding important workplace issues, including whether employers must allow marijuana smoking at work and who will pay for marijuana-related accidents. 

Erika Frank, CalChamber vice president and general counsel, explained to the committee that the vague wording in Proposition 19 will make sweeping changes to the way employers do business and require employers to offer extra protections to marijuana users.

If the measure is approved, Frank said, employers, including the State of California, would face the burden of proving that an employee who tests positive for marijuana is “actually impaired” from performing the job before taking any adverse action against the employee.

Employers would be prohibited from discriminating against marijuana users by taking marijuana use into account when deciding whether to hire an applicant, Frank explained. Any marijuana-smoking job applicant not hired could file a lawsuit claiming marijuana use was the reason, even if the employer had no knowledge of the use.

Moreover, unlike alcohol use, which employers can prohibit at work, under Proposition 19, employers could take action only for marijuana use that “actually impairs” work performance. Frank reiterated that the term “actually impairs” is a new legal standard that has never been defined or tested in court. The lack of a clear definition would force a delay in disciplinary actions used to protect workplace safety and drive up costs due to increased litigation.

In addition, Frank explained that passage of the act threatens state and federal contracts and grants. Specifically, she explained that this initiative could result in employers losing public contracts and grants because they could no longer effectively enforce the drug-free workplace requirements outlined by the federal government.

In July, CalChamber’s products division began looking into the employer implications should Proposition 19 become law. That initial review raised many questions and led to the preparation of the full legal analysis by CalChamber’s employment law advisor that was released in August. 

A full copy of the legal analysis is available here.