(October 13, 2010) The marijuana initiative on the November ballot (Proposition 19) is more about making it illegal for employers to have a marijuana-free workplace than it is about removing criminal penalties for possession.
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| Allan Zaremberg |
What is in the language of Proposition 19 that should cause concern for all employers? Proposition 19 creates a new protected class of workers and prohibits discrimination against marijuana users, just like age, gender and ethnicity.
Thus, even though pre-employment drug testing is not per se prohibited, an employer cannot use the results of a positive marijuana test as the reason not to hire an applicant.
Moreover, unless a local ordinance is subsequently passed in a community, it will be legal to smoke marijuana in the workplace. Employers will be prohibited from disciplining or terminating an employee who is “high” at work unless the employer can show that the use “actually impaired” the employee’s job performance.
‘Actual Impairment’ Undefined
Under current law, an employer does not need to prove actual impairment to discipline for alcohol or drug use in the workplace. If Proposition 19 passes, an employee could still be disciplined for alcohol use, but could not be disciplined for marijuana use unless the employer could prove “actual impairment.” This term is undefined and untested and an accident may have to happen first before an employer can prove actual impairment.
Other than public safety employees, Proposition 19 would apply to everyone, private or public sector jobs, such as fork lift drivers, nurses and school bus drivers.
In addition, any employer who relies on federal funds that require a drug-free workplace could have the receipt of those funds jeopardized by the passage of Proposition 19.
Workplace Issues
Most news stories discuss only whether marijuana should be decriminalized. It is important to get these workplace issues in front of the voters. I encourage California Chamber of Commerce members to spread the word about how Proposition 19 could jeopardize the safety of your workforce and lead to new employment law litigation, unless it is defeated in November.
Allan Zaremberg is president and chief executive officer of the California Chamber of Commerce.
Related Resources
Q&A: Prop. 19 Impact on Workplace
CalChamber Experts Answer Questions About Prop. 19’s Impact on the Workplace
CalChamber Tells Legislative Committee of Prop. 19 Problems for Employers
Serious Workplace Issues with Proposition 19
Legal Analysis
Proposition 19: Effects It Will Have on Workplace If It Becomes Law - CalChamber Video