Will a California ballot measure allow this in the workplace, whether the company likes it or not?

One of the most divisive measure on the California ballot is being watched around the country, and many businesses are saying it could be an HR disaster.

Prop. 19 would make it legal for adults over 21 to possess up to one ounce of marijuana, and grow up to 25 square-feet worth of marijuana plants.

The California Chamber of Commerce says the law will force companies to let employees smoke pot on the job, and that workplace accidents are sure to rise.

But would the law do that? Supporters of Prop. 19 say no, while businesses say the Legislative Analyst backs their interpretation. You would think determining exactly what the law would allow would be a simple matter of reading the text, but as with many vaguely worded state ballot initiatives, that simply isn’t the case.

At the center of the dispute are two separate lines in the initiative that almost appear to contradict each other. First, the proposition says that no citizens will be denied their right to legally smoke marijuana. But then it says that "The existing right of an employer to address consumption that actually impairs job performance by an employee shall not be affected."

Is it tricky to define impairment? The chamber says it will be an HR nightmare, and that companies will be effectively barred from controlling pot smoking in the workplace. Supporters of the ballot measure, on the other hand, say impairment from pot smoking is no different than impairment from alcohol or anything else that hinders job performance, and that companies will have every right to deal with it in a similar way. They say companies will be able to control pot smoking in the workplace and keep rules prohibiting drug use. This point of contention is especially important, since companies in California (according to the Chamber’s analysis) stand to lose federal contracts, because they won’t be able to be certify their workplace as drug-free as required by law. Supporters say they will.

It’s already becoming clear that Prop. 19’s wording is poor on the subject, though that may or may not have much of an effect on its chances with voters. The measure seemed to have a solid chance of passage earlier this year, but polls last week showed it losing ground. An L.A. Times/USC poll found 39 percent of likely voters supported the measure, while 51 percent opposed it. A Public Policy Institute of California poll found it trailing 44 percent to 49 percent.

Perhaps the best way to judge if legalizing marijuana will have a big effect on HR departments in California is to consider the effects of medical marijuana’s legalization in 13 states (including California) that have done so. All of the state laws are different, but they share one thing in common: the Supreme Court has said they don’t matter. Josephine Elizabeth Kennedy explains it like this:

"Currently, and as a result of the critically important U.S. Supreme Court decision Alberto R. Gonzales, Attorney General, et al. v. Angel McClary Raich, et al., No. 03-1454 (decided June 6, 2005, 125 S.Ct. 2195), in most states with medical marijuana laws, an employer may safely refuse to accept medical marijuana as a reasonable medical explanation for a positive drug test result. (This case is generally referred to as Ashcroft v. Raich or Gonzales v. Raich.) The case was argued on Nov. 29, 2004. It involved two California patients' rights to cultivate and possess prescribed marijuana. These patients had previously been protected from federal prosecution by a 9th U.S. Circuit Court of Appeals decision. More fundamentally, the case debates states' rights versus federalism. On June 6, 2005, the Supreme Court ruled the federal government may enforce the Controlled Substances Act's prohibition on the use of marijuana for medical reasons against persons who use marijuana under state medical marijuana laws."

Obviously, the legal precedent stating that federal law trumps state law in regard to drug use in the workplace has huge implications for Prop. 19 (barring a change in federal policy or Congressional lawmaking). Still, Kennedy recommends that employers spell out their policies on drug use clearly and approach the issue with “special care and sound legal advice.”

26 October 2010

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