Prop. 64 doesn’t prohibit employers from mandating drug tests for marijuana use

When California voters passed Proposition 64 in November, they did not make the use of marijuana equivalent to the consumption of alcohol. (Courtesy photo)

This week’s question comes from James Q. in Orinda, who asks:

Q: “I voted for the legalization marijuana in the last election. I want to know about what the rules are. How much can I have? How much can I grow? Can I be fired for smoking pot off the job? I can drink while I’m not on duty; can I smoke or can they still drug test me and fire me?”

A: James, Proposition 64 — officially known as the Control, Regulate and Tax Adult Use of Marijuana Act — is a complicated set of new regulations. Many people assumed it simply authorized the sale and use of marijuana. While that is true, there is much more to the law, only a bit of which I can cover here.

It is now lawful for people over 21 years of age under state law to 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. (Federal law still maintains that marijuana cultivation, sale and distribution is illegal.)

It is also now legal to cultivate, harvest, dry and process not more than six living marijuana plants and possess the marijuana produced by the plants. Marijuana can’t be smoked in any place where tobacco is prohibited or within 1,000 feet of a school, day care center or youth center (unless in your private residence). Like alcohol, you can not smoke marijuana while operating, or as a passenger in, a motor vehicle, boat or aircraft or other vehicle used for transportation.

Smoking pot in a public place is punishable by a fine up to $100. Instead of a fine, anyone under 18 will be required to complete four hours of drug education and up to 10 hours of community service.

The new law creates a taxing scheme in which there will be a 15 percent tax of the gross receipts of businesses selling marijuana. A new taxing authority is being created to regulate and tax adult use. Ten million dollars annually is dedicated to California Universities, for 10 years starting in 2018, to research and evaluate the effect of the new law, including economic and public health impacts, and to make recommendations to the Legislature and governor regarding possible changes in the law.

Two million dollars is to be sent to the UC San Diego Center for Medical Cannabis Research. Monies are to be dedicated to the Youth Education, Prevention, Early Intervention and Treatment programs, the Department of Fish and Wildlife for restoration remediation and restoration of wildlife habitat affected by marijuana cultivation and, among others, the California Highway Patrol for education, prevention and enforcement of laws against driving under the influence.

The law provides that a person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under the new law, may petition for a recall or dismissal of their sentence based on the penalties under the new law.

As to your question, James, about drug use and employment regulations, the law is clear: Nothing in Prop. 64 prohibits an employer from maintaining a drug policy that mandates drug testing, including for marijuana use. In short, the voters did not make the use of marijuana equivalent to the consumption of alcohol.

The courts have held that: “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.”

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

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