Legal analysis shows Proposition 19 would create ‘legal quagmire’

Proposition 19, the Regulate, Control and Tax Cannabis Act of 2010, not only would legalize pot use in California but create a legal quagmire for employers by compromising workplace safety and establishing a new class of protected workers in the state, according to a legal analysis by the California Chamber of Commerce.

“This initiative would change the way employers are required to do business in our state,” said Allan Zaremberg, president and CEO of the California Chamber of Commerce. “Essentially any employer would be required to offer marijuana users extra protections above those provided to other employees. If Proposition 19 becomes law, our state’s workers will face increased exposure to injuries, and our employers will face increased exposure to liability. Proposition 19 is bad for employers and their employees.” 

Proposition 19 seeks to legalize the cultivation, processing, transportation, distribution, and sale of marijuana for personal use in California. However, the measure is written in a way that blurs the line for employers regarding important workplace issues including whether or not employers must allow marijuana smoking at work and who will pay for marijuana-related accidents. 

CalChamber’s employment law adviser Jennifer Shaw, who prepared the analysis, points out that the measure establishes a new, higher, but yet undefined standard of “actual impairment.” According to Ms. Shaw, under this standard, an employer cannot take any action related to an employee’s use of marijuana and their potential threat to workplace safety as is currently the case for alcohol.

For example, if a forklift driver showed up reeking of marijuana smoke, an employer could not take disciplinary action until it could be proven that the employee’s job performance was “actually impaired” by the marijuana use (for example, after an accident occurred). Under Proposition 19, marijuana would be more protected than alcohol.

“Imagine a workplace where employees show up to work high, and there’s nothing an employer can do about it,” said Ms. Shaw. “It is pretty clear that Proposition 19 will lead to many unfortunate outcomes including compromised workplace safety, discrimination lawsuits filed by employees who use marijuana but got fired for poor performance, and increased costs of liability insurance,” she said.

Last month, CalChamber’s products division — HR California — began looking into the employer implications should Proposition 19 become law. That initial review raised many questions and led to the preparation of the full legal analysis by CalChamber’s employment law adviser.

A full copy of the legal analysis is at www.calchamber.com.

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The California Chamber of Commerce (CalChamber) is the largest broad-based business advocate to government in California. Membership represents one-quarter of the private-sector jobs in California and includes firms of all sizes and companies from every industry within the state, www.calchamber.com.