1.
Legalized Recreational Marijuana:
Do’s and Don’ts for Employers
Gina M. Roccanova, Principal
Chair, Labor and Employment Practice Group
January 4, 2017

2.
Legal Overview and Practical Suggestions
2
Prediction
• What, if anything, did Prop 64 change?
• Potential approaches for employers
– Just Say No
– Don’t Ask, Don’t Tell
– Treat It Like Prescription Opiates
– Prohibit Use On- or Off-Duty
• How to communicate with employees
on this topic

3.
• California Health and Safety Code
• Compassionate Use Act
• Ross v. RagingWire Telecommunications
Good news for employers:
20 years of the Compassionate Use Act presented
tougher legal questions than Prop 64 likely will.
Pre-Prop 64 Legal Landscape

4.
Pre-Prop 64 Legal Landscape
4

5.
Pre-Prop 64 Legal Landscape
5
Ross v. RagingWire
Telecommunications

6.
Pre-Prop 64 Legal Landscape
6

7.
7
Effects of Prop 64
Prop 64 did not change any of this
• Explicitly preserves right of employers
to maintain a drug-free workplace.
• Does not require accommodation
of “the use, consumption, possession,
transfer, display, transportation, sale,
or growth of marijuana in the
workplace.”

8.
What Is Changing
8
• Law:
– Adults may now possess, transport,
grow, and share small amounts of
marijuana for recreational purposes
• Public attitudes:
– 1.4 million Californians, 5% of adults,
have used medical marijuana
– Prop 64 passed by wide margin

9.
Current State of the Law
9
A Look Into the Future?

10.
• Can still legally prohibit it
• Can still test
BUT:
– For just-cause employees, must establish
a nexus to the job
– Technological limits of testing
What About Off-Duty Conduct?

11.
• DOT regulations unchanged
• Can still administer pre-employment,
post-accident, and reasonable suspicion
testing for non-DOT employees
Drug Testing and Its Limitations

12.
• THC is metabolized differently
• Urine test
– Does not measure psychoactive component,
therefore cannot determine impairment
– Metabolite detectible for days or months
• Blood test
– More accurate but
– More invasive
– For regular users, can remain in blood for a week
Drug Testing and Its Limitations

13.
Potential Approaches for Employers
13
1. Just Say No
Most appropriate for public safety
and safety-sensitive positions
It is
perfectly
legal
May be the most
tolerable stance
for your jurisdiction

14.
Potential Approaches for Employers
14
As long as an
employee does
his or her job
Meets the
employer’s
standards
Is not impaired
or using
marijuana in
the workplace
2. Don’t Ask, Don’t Tell
Health & Safety Code language
presents opportunity for liberal
attitude toward off-duty use
Then what
employee
does on
his/her own
time remains
his/her own
business.

15.
Potential Approaches for Employers
15
Limited to: (1) federal Department of Transportation regulations require it,
(2) pre-employment screening program applied to all applicants, (3) reasonable
suspicion testing, (4) post-accident testing, (5) legitimate, job-related medical
screening, or (6) random screening program for safety-sensitive positions.
Unless an employer subjects
employees to drug testing, this is
essentially the default position.
2. Don’t Ask, Don’t Tell

16.
Potential Approaches for Employers
16
3a. Treat Medical Marijuana Like Prescription Opiates
– Like any other prescription drug that may impair
an employee’s physical and cognitive capacity
– Goes beyond what is required by law
• Required Safeguards
* Employees must disclose any circumstance, including any medication,
that may jeopardize their ability to safely perform their jobs.
* Any use of medical marijuana cannot directly impact other employees.
* Smoking marijuana should not be permitted anywhere that smoking
tobacco is prohibited (re: second-hand smoke).
* Cannot place employee, co-workers, members of the public, or other
third parties in danger.
* Employees who are impaired, regardless of the substance, should not
be operating heavy equipment or motor vehicles.
* Cannot unduly jeopardize the quality or quantity of an employee’s work.

17.
3b. Treat Recreational Marijuana Like Alcohol
Potential Approaches for Employers

18.
Marijuana in the Workplace
18
Q&A

19.
Presenter
19
Gina M. Roccanova
Principal
Chair, Labor and
Employment Practice
800.464.3559
groccanova@meyersnave.com
Upcoming Prop 64 Webinars:
Taxation/Ballot Measures
January 18, 2017
State Regulations & Potential Changes
February 1, 2017
For more information, visit meyersnave.com