By Jessica Krack, All Bay Paint
In November of 2016, California voters passed Proposition 64, essentially legalizing the use and possession of recreational marijuana statewide. Despite the publicity and attention gained by the proposition, there is still a lot of misinformation surrounding the full implications of its passage. This is especially true in the arena of human resources and employment law. Commercial real estate industry employers will need to evaluate how this legislative change affects their current policies and if these policies are consistent with the regulations imposed by their clients or applicable regulatory agencies.
Proposition 64 specifically allows employers to draft their own company policies that may or may not permit employees to use marijuana, even off the clock. As such, employers are still explicitly granted the right to enact drug-free workplace policies, which may include administering drug tests and even terminating employees who test positive for marijuana. Additionally, this provision even extends to medical marijuana, as upheld by California courts in 2008 and 2016. All of this seems to directly contradict the legality of marijuana and can lead to confusion, misinformation and disintegrated employee-employer relationships if not handled carefully and effectively.
The first point of consideration is for employers to determine if their current policies prohibit the use of marijuana, and whether they would like to continue this prohibition. If employers choose to prohibit marijuana usage, specifically listing it by name will aid in clarity, rather than terms such as “illegal drugs,” which have been muddled by recent legal changes.
Additionally, employers should decide if medicinal marijuana will be treated differently from recreational usage. Since marijuana is still illegal at the federal level, some employers with federal contracts or those bound by Department of Transportation or other federally mandated regulations may not have much choice in the matter. These employers should still consult their current policies to determine if the verbiage is consistent with industry regulations and clearly defined to prevent miscommunication. (In fact, all employers should consult with qualified legal counsel to verify that their policies are compliant with applicable laws and regulations.)
Employers should also decide what measure(s) will be used for enforcement of this policy. Should employers choose to use drug testing, they will need to clearly state when and under what circumstances such testing will take place. Numerous employee privacy laws surround drug testing, and so employers should make certain to consult with legal counsel to ensure that their policies are compliant.
In the final step of policy development, employers should decide what, if any, measure(s) will be used to discipline employees who violate company policy. Whenever drafting any form of guidelines regarding employee discipline, the most important consideration is consistency. To avoid claims of discrimination or disparate treatment, employers need to apply the same policies to their best employees as to their worst, and so employers should take extra care and consideration to draft an effective policy that is consistent with company values and the overall message of their human resource policies.
Finally, after a policy has been drafted and approved by qualified legal counsel, employers need to disseminate and clearly explain the policy, even if nothing has changed. Many employees are mistakenly under the impression that Proposition 64 allows them to use marijuana without any adverse impact on employment. Clarifying company policy preemptively allows employees to understand the policy and its potential repercussions before it becomes a disciplinary issue. This can help prevent future incidents, while also legally protecting employers from allegations that may stem from misinterpretation of the policy.
Though Proposition 64 made significant changes in the criminal classification of marijuana, it is still up to each employer to decide how to adapt these changes to the workplace and, perhaps most importantly, to convey these policies to their employees.
About the Author
Jessica Krack is the operations manager for All Bay, where she is responsible for day-today operations, including human resources and employee relations. She is currently pursuing her master’s degree in HR from Penn State.
This article will also appear in The VIEW, the quarterly publication jointly curated by the three Bay Area chapters of Commercial Real Estate Women (CREW)—CREW San Francisco, CREW East Bay, and CREW Silicon Valley. CREW is a nationwide business networking organization dedicated to the advancement of women in commercial real estate. For chapter news, events, and membership information, visit the Bay Area member organization websites at crewsf.org, creweastbay.org, and crewsv.org.