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Navigating Marijuana's Legalization In The Workplace

November 7, 2017 | Ryan Kagarakis

Proposition 64 is a recently passed law that legalized the recreational use of marijuana for adults 21 and older in the state of California. What are the possible implications for employers?

Employers are still entitled to enact and enforce drug policies related to marijuana. You do NOT need to tolerate or accommodate marijuana use. Proposition 64 DOES NOT:

  • Affect/restrict employer’s rights to maintain a drug free workplace.
  • Require employers to permit or accommodate marijuana use/consumption/possession in the workplace.
  • Affect the ability of employers to have policies prohibiting use by employees or applicants, or prevent employers from complying with state or federal law.

Testing for Marijuana

  • Pre-Employment: You can only test following an offer of employment. In California you have the right to pull an employment offer if the applicant’s drug test comes back positive for marijuana. Currently, there is no duty to accommodate an applicant with a positive test.
  • During Employment: Random drug testing is generally not permissible since it can be seen as “targeting”. However, in a safety sensitive position (such as construction) testing for cause IS permissible. In order to test during the course of employment there must be “reasonable suspicion” that the employee was under the influence or intoxicated at the workplace. In the case of reasonable suspicion being present it is recommended to have documentation with witness statements.

Marijuana and Workers’ Compensation

The passing of Proposition 64 has created a gray area when it comes to workplace injuries with employees under the influence of marijuana. In order to drug test after a workplace injury happens two contingencies must be met:

  • The claim was the result of Employee’s own negligence
  • There is reasonable suspicion that the employee was under the influence. If there is, the employer must have witnesses and accounts that the employee either acted under the influence or appeared to be under the influence.

What Does a Positive Test for Marijuana Mean for Coverage?

In order for workers’ compensation benefits to be provided, California Labor Code 3600, Section 4 cites that “the injury is not caused by the intoxication, by alcohol or the unlawful use of a controlled substance, of the injured employee.” Although marijuana is no longer unlawful in California it is still considered a Schedule One drug under the federal Controlled Substances Act. However, the use of marijuana for private recreational use is not unlawful so this leaves the issue somewhat in limbo.

We recommend addressing any specific question that you may have regarding this topic with an insurance professional and/or an attorney specializing in labor matter.


Ryan Kagarakis
Commercial Insurance Broker at Brown & Brown Inc.

Phone: 916.625.4616 | Direct Fax: 800.761.6733