Anyone following the recent election in November saw that Proposition 19 was soundly defeated by California voters. The proposition asked voters to allow the state to “regulate, control and tax cannabis.” Employers may have asked themselves, “What effect would Proposition 19 have had on me as an employer in California had it passed?”
First, if Proposition 19 had passed, employers in California would have been allowed to discharge or otherwise discipline only those employees whose legal use of marijuana impaired “actual job performance.” As such, an employer smelling marijuana on a worker’s clothes would not have been sufficient to justify discipline of that employee. Likely, formal discipline of an employee, such as a write-up, suspension, etc. would only be permissible if it were based on problems with job performance, not merely the use of the marijuana.
It is not difficult to see how employees would react to such discipline, write-ups, or terminations. Chances are employees would argue that the discipline, even discipline based on poor performance, was merely a pretext for the employee’s legally protected use of marijuana. Employers levying such discipline could expect prompt discrimination lawsuits.
Also, Proposition 19 would not have only affected current employees. Denial of employment to a marijuana-using job applicant would also be prohibited, raising the issue of whether employers have a right to conduct pre-employment drug screening for use of marijuana.
Luckily for employers, this increase in litigation pertaining to employee marijuana use will have to wait for another day. California voters have spoken, and thus California employers can breathe a sigh of relief. At least for now.
