Marijuana on the Ballot and Business Impact

Well, Californians are going to vote on legalizing marijuana this Fall.

Actually, voters won’t really have to get to the larger question of whether or not marijuana should be legalized, because the measure is so badly worded (you wonder what those guys were smoking when they wrote it) it will cost California and California businesses billions of dollars. Here’s why:

Hidden within the marijuana legalization measure that will be on the November ballot is Section 11304 (c). That provision provides as follows:

(c) No person shall be punished, fined, discriminated against, or be denied any right or privilege for lawfully engaging in any conduct permitted by this Act or authorized pursuant to Section 11301 of this Act. Provided however, that the existing right of an employer to address consumption that actually impairs job performance by an employee shall not be affected.

Here’s what this means: An employee can test dirty for marijuana, can bring marijuana to work, can probably consume marijuana (at least in non-smokeable form) at the workplace with no consequence from the employer. We have created a ridiculous situation where an employer can send an employee home (or even terminate that employee) if they have liquor on their breath, but can do nothing about an employee who tests dirty for marijuana and is even in possession of marijuana at the workplace.

The right of an employer is limited to the ability “to address consumption” only where that consumption has ACTUALLY IMPAIRED the job performance of a specific employee. In other words, the employer cannot even take preventive measures where an employee has tested dirty for marijuana in their system. This ability to “address consumption” is ridiculously narrow and only permits after the fact accountability: The employer’s only recourse is to speak with the employee after the industrial accident has occurred.

The inevitable consequence of this provision will be higher insurance rates and higher workers compensation rates for California employers.

Further, this section also makes it impossible for a California employer to be in compliance with the federal Drug-Free Workplace Act of 1988. As you know, the Drug-Free Workplace act provides that it is a condition precedent of receiving many federal contracts for the prospective contractor to be able to affirm that their workplace is drug-free. If this measure passes, no California employer will be able to bid with confidence on federal contracts – they will be unable to make this affirmation.

Who would have thought that a marijuana legalization initiative would also be a job-killer?