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California Lodging News
www.calodging.comEmployers in the hospitality
industry
have a whole host of new laws to
deal with for 2017. One of those is The Adult
Use of Marijuana Act (“Prop 64”), a hot-
button California proposition that passed with
roughly 56% of the vote.
The new law legalizes the recreational use of
marijuana for adults 21 years of age and older
and raises legitimate questions for many em-
ployers. For example, how does an HR team
deal with employees who claim they now have
a right to use marijuana in the workplace?
Prop 64 is likely to embolden many marijuana
users to assert a “right” to do so.
Background of Marijuana
Legalization
California is not the first state to legalize mari-
juana. Recreational marijuana has already
been legalized for adults in other states like
Colorado, Washington, Oregon, and Alaska.
In addition to legalizing marijuana use for
adults over 21, Prop 64 makes it lawful for
each person to grow up to six marijuana
plants for personal use. Prop 64 also provides
information regarding taxation and regula-
tions pertaining to the growth and sale of
marijuana. As a result, you can expect to see
an increase of recreational marijuana use
among those in your workforce.
Employers are Still Entitled
to Enforce Drug-Free Policies
in the Workplace
Despite Prop 64, employers do not need to
change how zero-tolerance or other drug poli-
cies are enforced in the workplace. Hotel em-
ployers will be free to drug screen applicants,
administer reasonable suspicion drug tests,
and discipline employees who test positive for
marijuana or other drugs.
The language of Prop 64 is clear: public and
private employers are still entitled to enact
and enforce policies regarding marijuana. The
law goes on to state that its language
shall not
be construed or interpreted to:
•
amend, repeal, affect, restrict, or preempt
the rights and obligations of public and
private employers to maintain a drug-
and alcohol-free workplace;
•
require an employer to permit or accom-
modate the use, consumption, posses-
sion, transfer, display, transportation,
sale, or growth of marijuana in the
workplace; or
•
affect the ability of employers to have
policies prohibiting the use of marijuana
by employees and prospective employees,
or prevent employers from complying
with state or federal law.
Prop 64 expressly permits employers to en-
force drug-free policies and prohibit all uses of
marijuana in the workplace. Accordingly, em-
ployers may continue drug testing new hires
upon a conditional offer of employment and
current employees upon reasonable suspicion.
Tips for Hotel Employers and
Human Resource Representatives
Ensure Up-To-Date Policies:
Hotel em-
ployers should ensure that all drug policies
are up-to-date and comprehensive. Consider
implementing a zero-tolerance policy to offer
maximum leverage should a situation develop
in the workplace. The employee handbook
should include marijuana as a prohibited
substance.
Communicate Company Policies Regarding
Drug Usage:
Clearly communicate that the
passage of this law does not change your zero-
tolerance policy. Some employees might ques-
tion any ability to restrict marijuana usage
now that the drug is “legal” in California. Feel
free to point out that the drug remains illegal
under Federal law, but more importantly,
that employers have always had the right to
prohibit legal substances from being in their
system while at work. For example, remind
them that policies prohibiting working while
intoxicated, or with alcohol in their system,
have always been permissible. This is despite
the fact that alcohol has been legal in the state
since Prohibition.
Be Prepared For Pushback:
It is likely
that employers will get questions about the
“unfairness” stemming from the fact that
marijuana’s active ingredient—THC—stays
in the bloodstream well after consumption,
sometimes for weeks at a time. This is much
different from alcohol, which passes through
a person’s bloodstream at a much quicker rate.
Thus, some employees may inquire whether
it is proper for HR to send them for testing or
discipline them based on legal, off-duty usage
of marijuana which may have occurred over
the weekend, or weeks before their shift.
However, Prop 64 states that employers are
not prohibited from applying zero-tolerance
policies applicable to recreational marijuana.
While it may be unfortunate that one cannot
adequately test for marijuana “impairment,”
that does not mean that employers cannot test
for and subsequently discipline employees
The Legalization of
Marijuana
What California Employers
Need to Know
By John A. Mavros, Esq., Fisher & Phillips, LLP