Proposition 64 and Safety-Sensitive Fields

In November 2016, Californians voted to pass the ballot measure of Proposition 64.  This law legalized the recreational use of marijuana in private homes and businesses for residents who are 21 years of age or older.  Legalization for purposes of recreational use at the state level does not give employees carte blanche to get high and come to work, however.

Proposition 64 will be added to the California Health and Safety Code as Section 11362.45.  The law includes a provision that states that nothing in the law should be interpreted in such a way as to preempt the ability and right of an employer to maintain a drug and alcohol work place.  The law also states that an employer cannot be forced to accommodate the use of marijuana in the work place.  Finally, it also states that employers are free to continue to have policies that prohibit the use of marijuana by employees or prospective employees.  Also of note is that the law does not differentiate between medical use and recreational use of marijuana.  Employers are free to continue to prohibit marijuana use even if that use is medicinal.  Federal and state law requires that employers make reasonable accommodation for a disability, but the new law does not require that employers make accommodation for drug use.

This is all a logical set of restrictions when it comes to safety-sensitive professions.  Construction workers and truck drivers face high incidences of work-related injuries, and are in fact some of the most safety-sensitive fields in California.  The law provides that employers may continue to craft policies and hiring and firing practices that will ensure their employees are sober and drug-free.  California labor code § 3600(a)(4) precludes employer liability for a claim of workers’ compensation where the injury was at least proximately caused by intoxication or the unlawful use of a controlled substance.  Now that marijuana is legal for adults to consume even without a prescription, employers must rely on the fact an employee was intoxicated at the time of the injury, as opposed to use of marijuana. Of note is that OSHA has new rules that prohibit blanket post-accident drug tests, so a post-accident drug testing policy needs to accommodate this regulation.

If you have questions about your employees’ use of marijuana and how it may impact your workers’ compensation system, contact me today at (714) 252-7078.  We can discuss your business and make sure you are in compliance with the current law.

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