California voters passed Prop 64 and made the recreational use of marijuana legal in California.  As a California employer this may be a point of concern for you.  You may have apprehensions about how you maintain a safe and drug free workplace now that marijuana is legal.  You need not fear, while marijuana is now legal; the new law provides protections for employers.

Recreational Marijuana is Legal in California

Drug and Alcohol Policies

California employers should have a drug and alcohol policy within the company handbook.  If you do not have a policy, be proactive and reach out to an employment law attorney to assist you in drafting a strong policy.  Your drug and alcohol policy should cover the company’s stance on the use of marijuana.  As an employer you are allowed this right pursuant to Prop 64 which grants “public and private employers to enact and enforce workplace policies pertaining to marijuana.

So what should your policy include?

  • Work Rules
  • Required Testing
  • Testing Procedures
  • Confidentiality Clause
  • Inspections
  • Reasonable Suspicion
  • Enforcement


Employers can view the use of marijuana by employees the same as they view the use of alcohol by employees.  Both substances impair one’s ability to perform certain functions at the level one would perform them without the substance.  Just as an employer may prohibit the consumption of alcohol at the workplace an employer may prohibit the use of marijuana. California is an at will state and employers are legally allowed to put policies into place that state their expectations.  Provide a clear and detailed list of your expectations and what behaviors will not be tolerated from your employees.

Drug Testing

While the recreational use of marijuana is now legal for adults residing in California the law mandates that employers have the right to maintain a drug and alcohol free workplace.  One way employers may do this is by creating or maintaining a drug testing policy within their handbook.  Essentially the new law allows employers to test potential employees for marijuana use prior to hiring them and to continue to test workers throughout their tenure.

Should employees test positive for marijuana use, employers are free to fire them.  Further the law states that employers are not required to prove that employees were actually impaired while working it just requires that the employee test positive for the substance. Your policy should include a statement that the company may request testing at any point should they have a reasonable suspicion that an employee is under the influence of drugs or alcohol.


All drug and alcohol policies should include a short clause of confidentiality. This clause should inform the employee that all information or records retained by the company in connection with a positive test result will be kept confidential to the extent required by law.

All California employers should examine their drug and alcohol policies and update them as they see fit given the passing of Prop 64.  Your drug and alcohol policy may need to be updated with your explicit expectations regarding the use of marijuana in current and future employees.  Once you have updated your policy, distribute it to all employees and require that they sign a notice of acknowledgment of receiving and reviewing the new drug and alcohol policy.

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