What If California Legalizes Pot?

Posted on October 20, 2010 by - Also by this author

Passage of Proposition 19 would mean that there is legal risk in firiing an employee who has a “medical card” for legal use of marijuana. What will be the fallout for drug-free workplaces? 
With Proposition 19 firmly splitting California voters 50-50 two weeks before Election Day, it certainly generates much discussion in the workplace about the effects it might have.
Recently I asked an employee to take a random drug test. The employee presented me with a medical card indicating he had the legal right to smoke marijuana and was prescribed marijuana to address his illness. Fortunately, this employee is not employed as a chauffeur or even in a safety sensitive job, so the ramifications were not as deep as they could have been.
It did require me to step back and figure out how I was going to handle this and prompted me to call my attorney for discussion. If I terminate the employee, I felt I could have some legal exposure. It is considered a medical condition and if I was to terminate an employee because they had asthma, for example, I am sure I would find myself in court. I could not justify in my mind terminating someone for a medical condition, yet marijuana usage is completely contrary to our own company policy.
In examining the current laws of California, people are allowed to grow, buy and possess marijuana as long as they have a card issued by a doctor. While the voters approved of this measure some years ago, federal authorities have shut down local marijuana dispensaries. While California finds medical marijuana use acceptable, the U.S. government clearly does not approve of this because it is still against federal law.
The same position applies between a private company and the state of California. As a company, we are allowed to have our own policies and the right to have a drug-free workplace. We also have some clients under contract who require us to maintain a drug-free workplace. Prop 19, if passed, builds up to the dilemma of tolerating employees with a medical condition who can legally use marijuana, or denying them employment based on the need for a drug-free workplace but then discriminating against them because of a medical condition.
Thank goodness that chauffeurs are completely governed by DOT rules and there is no question about whether or not a medical card is valid. The law is very clear that commercial drivers must be randomly tested and cannot operate a vehicle if found to be using drugs. It doesn’t matter if they have a medical card or medical condition; the decision is not ours to make. Office workers and non-safety sensitive positions do present challenges and I am wondering how other people handle this or plan to handle it.

— Jim Luff, LCT Contributing Editor

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