STANFORD – With California set to vote on whether or not to legalize marijuana for recreational use, some employers are wondering what a "yes" vote could mean for their drug testing policies.
The language of the bill indicates it would not change employers' right to maintain a drug-free workplace:
“Nothing in section 11362.I shall be construed or interpreted to amend, repeal, affect, restrict or pre-empt…the rights and obligations of public and private employers to maintain a drug and alcohol free workplace…” it states.
That is something that Stanford law professor William B. Gould IV said was good for employers who still wish to drug test.
"The focus that I have had is on whether employers can test if they choose to test and whether they can take action against their employees if they test positive,” he told the Northern California Record. “Their ability to do that is not thus far affected by the changes relating to criminal prosecution."
Gould said that there would need to be a change to the federal laws before discrimination lawsuits would occur.
"I think that the major roadblock for applying a discrimination law or wrongful discharge common law to marijuana is the federal statue. The federal statue is going to have to be changed or that is really step number one. It is possible that if states enact legislation explicitly addressing marijuana testing they can be regulated that way as well. But this far there doesn't seem to be much willingness to apply the new law or laws relating to criminal prosecution to the world of work."
The vote on the Control, Regulate and Tax Adult Use of Marijuana Act (Proposition 64) will be on Nov. 8.
If passed, it would legalize the consumption of marijuana for anyone older than the age of 21, whether for medicinal or recreational use. Proposition 64 would also allow adults to possess, process, transport, purchase, obtain or give away 1 ounce of marijuana or 8 grams of concentrated cannabis to anyone older than 21. It would also grant permission to adults to keep up to six marijuana plants.
According to Society for Human and Resource Management, more than half of employers drug test on job seekers, or 57 percent. Most of the companies that do, or 69 percent, have been testing for more than seven years.
Gould said he believed employers could adapt if marijuana became legal.
"The culture is changing,” he said. “The law relating to the culture is changing and I think that they probably will be able to adapt as time goes on."
California was the first state to legalize medical marijuana with Proposition 215 in 2010. The first marijuana-related vote in California was Proposition 19 in 1972, according to Ballotpedia.