APR 2017 – Marijuana in the Workplace


Marijuana and workplace policies

By; Erika Frank J.D.

CalChamber General Council



On November 8, 2016, California joined several other states in legalizing recreational use of marijuana by adults.

Proposition 64, legalizes the recreational use of marijuana for adults 21 years of age and older, imposes a 15% excise tax on marijuana sales and establishes a regulatory framework for the sale of marijuana.

However, despite the passage of Prop 64, several things will not change. Smoking or ingesting marijuana in public will remain unlawful, as will smoking or ingesting marijuana in places where smoking tobacco is also prohibited. Similarly driving under the influence of marijuana will remain illegal.

When it comes to workplace, California employers can take a deep breath of fresh air, because Prop 64 maintains the status quo for employers seeking to maintain a drug and alcohol free workplace.

Employers’ policies related to drug possession, use and impairment as well as testing are not compromised with the legalization of marijuana use under Prop 64. Marijuana will still remain an illegal Schedule I substance under the federal Controlled Substances Act, so even with the passage of Prop 64, employers may continue to prohibit use, possession and impairment at work and may continue to test for use when appropriate.

Pre-employment drug testing is also a lawful mechanism employers may currently use to maintain a drug-free workplace. California employers may conduct pre-employment drug testing of all applicants before hire and deny employment if the drug test comes back positive, even if the applicant was legally using marijuana under the state’s Compassionate Use Act.

Employers should review existing policies and remind employees not only about the company’s drug-free workplace police and practices but also to specify that marijuana is also prohibited.

When reviewing existing policies or creating new ones, make sure your policy clearly states the company’s position on drugs in the workplace, including marijuana. In addition if you conduct pre-employment drug testing, inform all applicants of this policy and clarify that they will also be tested for marijuana use.

Once your policy is review and distributed, be sure to follow the policy and steer clear of exceptions. Also consider the following when developing a drug-free workplace;

Establish a policy banning the use, possession or sake of drugs in the workplace and on company property and banning employees from being under the influence or an illegal or controlled substance while on the job, including alcohol and marijuana.

Train all supervisors about the company’s drug-free policy.

Train supervisors to identify signs of drug or alcohol use.

Clearly communicate your policy and consider re-distributing the policy on an annual basis.