California's New Marijuana Law: What Public School Employers Should Know About Proposition 64

November 2016

On November 8, 2016, California voters approved Proposition 64, also known as the Adult Use of Marijuana Act (“AUMA”), which provides for the lawful recreational use of marijuana for adults 21 and older. This new law is effective immediately; however, many details concerning the cultivation, sale and distribution of marijuana have not yet been developed. State regulations are required to be in place by January 1, 2018. 

It is important to note that AUMA does not create any right for employees to use or be under the influence of marijuana at work and does not appear to limit an employer’s right to implement policies that restrict and/or prohibit marijuana possession or use in the workplace.

In general, AUMA decriminalizes recreational marijuana use, subject to the following limitations:

  • Adults 21 or over may possess and/or purchase up to a maximum of 28.5 grams (1 oz.) of non-concentrated marijuana or up to 8 grams of concentrated marijuana.
  • Following the enactment of state regulations, only lawfully licensed marijuana dispensaries may sell marijuana.
  • An adult 21 or over may cultivate up to six (6) marijuana plants within his or her personal residence.
  • Consumption of marijuana is not permitted in public, or in places where tobacco use is also prohibited.
  • AUMA expressly permits “public and private employers to enact and enforce workplace policies pertaining to marijuana.”    

In addition to the above limitations, AUMA expressly prohibits smoking marijuana or marijuana products within 1,000 feet of a school, day care center or youth center. The law provides for a limited exception if the marijuana use is in (or upon the grounds of) a private residence, but the marijuana smoke must not be detectable on school property while children are present. Further, the new law will prohibit marijuana businesses from operating within 600 feet of schools and other areas where children are present.

Employment related language embedded in the new law warns against interpreting it in any way that may amend, repeal, affect, restrict or preempt the rights and obligations of public and private employers to maintain a drug and alcohol free workplace. AUMA provides that an employer is under no obligation to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growth of marijuana in the workplace. Further, the new law does not abrogate an employer’s right to have policies prohibiting the use of marijuana by employees and prospective employees, or to prevent employers from complying with state or federal law.

Based on these provisions, it appears that employers will be able to continue enforcement of policies against marijuana usage in the workplace. Further, AUMA does not appear to affect or overrule the California Supreme Court's holding in Ross v. RagingWire that an employer is not required to accommodate an employee’s lawful use of medicinal marijuana. 

But it remains to be seen how—if at all—the legalization of recreational marijuana usage may affect an employer’s ability to regulate or discipline employees for using marijuana outside the workplace during off-duty time, or whether an employer may use a prior marijuana conviction as a basis to deny employment if the violation would have been lawful under AUMA.  

If you have any questions regarding Proposition 64 or any related issue, please call one of our six offices.

F3 NewsFlash prepared by Joshua Stevens, Lorena Nunez and John W. Norlin.
Josh is a Partner in the F3 Oakland office.
Lorena is an Associate in the F3 Sacramento office.
John is Special Counsel in the F3 San Diego office.

This F3 NewsFlash is a summary only and not legal advice.  We recommend that you consult with legal counsel to determine how this legal development may apply to your specific facts and circumstances. Information on a free NewsFlash subscription can be found at www.f3law.com.

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© 2016 Fagen Friedman & Fulfrost LLP

All rights reserved, except that the Managing Partner of Fagen Friedman & Fulfrost LLP hereby grants permission to any client of Fagen Friedman & Fulfrost LLP to use, reproduce and distribute this NewsFlash intact and solely for the internal, noncommercial purposes of such client.

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