If you thought it was kosher to test positive for THC now that cannabis is legal in California, think again. Last Wednesday morning, the Newport Beach Chamber of Commerce gathered at the Bahia Corinthian Yacht Club in Corona Del Mar for a networking luncheon focusing on Proposition 64, or AUMA, and how the new cannabis laws will effect the workplace. Although no one truly knows how the laws will play-out, Ron Brand, an Irvine-based labor and employment law attorney, tried to provide some answers for an audience of nearly 40 people ranging between the ages of 30 and 80 years old.
He kicked off the lecture by giving a brief timeline of cannabis’ complex, twisted history. Starting before 1900 the cannabis plant was regularly used in the United States. But when an influx of Mexicans arrived in the U.S. in the early 1900s, the government's perspective on the plant quickly shifted. “There is a racist component to marijuana prohibition,” explained Brand. “After the Mexican revolution in 1910 lots of Mexicans immigrated to the United States. America didn’t want them here so they used marijuana as a way of highlighting all the problems they caused.”
Brand laughed during this part of the history lesson because of the nearly identical themes present in our country today. But it doesn’t stop there. Harry Anslinger used his position as head of the Federal Bureau of Narcotics as a way to promote his career and used the criminalization of cannabis as a way to gain power within the organization.
Anslinger used over-the-top propaganda such as, “If the hideous monster Frankenstein came face to face with the monster marijuana, he would drop dead in fright.” This eventually led to Hollywood’s first weed-film box office hit in 1936: Reefer Madness. (Note: If you haven’t seen this movie, we highly recommend you do because it’s the essence of propaganda bullshit—the theatrics and messages in the film will have you knee-slapping and gasping for air in laughter.)
While Brand got into the more recent history of cannabis, including Prop. 215 and raids under the Obama Administration, those in attendance munched on buffet food. An older gentleman randomly exclaimed during the middle of Brand’s presentation,“If Trump builds the wall we’ll keep the drug dealers out of California.” Eye rolls and awkward laughter ensued.
“We’re not actually getting into that conversation right now, are we?” said a younger woman.
We went over what Prop 64 allows and doesn’t permit. Brand explained that you can transport, obtain, possess or give away up to an ounce of weed or eight grams of concentrate, and grow six plants legally if you’re over 21. Someone in crowd asked loudly, “Does Prop. 64 override or amend Prop. 215?” Brand said yes. But in our experience that answer varies with whom you talk to. According to Bill Panzer, one of the Prop. 215 authors, Prop. 64 doesn’t effect 215 for a number of reasons.
For example, Prop. 64 is for recreational cannabis—not medical. Prop. 215, or the Compassionate Use Act strictly relates to medical marijuana. The Medical Cannabis Regulatory and Safety Act (MCRSA)—which was signed into law at the end of 2015—would be the proposition to effect Prop. 215. In many ways it adds on to 215, although opponents of Prop. 64 say otherwise.
In regards to employment, Brand explained that it isn't mandatory for employers to accommodate the use of cannabis. In other words, even if you’re a licensed medical marijuana user, an employer has the right not to hire you (or, conversely, fire you) if you test positive for THC. Employers have the right to keep tabs on who is using cannabis through random drug testing. From there they can decided of the employee(s) are fit for a position or not.
“Proposition 64 provides that nothing in its language shall be construed or interpreted to amend, repeal, effect, restrict or preempt the rights and obligations of public and private employers to maintain a drug and alcohol-free workplace,” said Brand. “Employers are not required to accommodate the possession, use, transfer, sale or display of cannabis in the workplace. Therefore, it's possible that you can not get a job based on the fact marijuana is in your system.”
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Brand used the example of a case in 2008 known as Ross vs. Ragingwire Telecommunications Inc. Ross suffered from severe back problems, so his doctor prescribed him cannabis for pain-management. He was offered a job at Ragingwire Telecommunications Inc. and was required to get drug tested prior to employment. Even though Ross was upfront about his cannabis use to his employer, Ragingwire denied him employment because he tested positive for cannabis. Ross sued the telecommunications company claiming the employer discriminated against him by not hiring and failing to accommodate his cannabis use, as he had a medical marijuana recommendation for a bonafide disability.
The California Supreme Court said that Ross had no claim for wrongful termination, discrimination or failure to accommodate disability because Prop. 215 doesn’t address employment issues. It just says you won’t be prosecuted under state law for using cannabis. Nothing in it’s literature talks about employees rights to use marijuana either at work or outside the workplace.
“Employees don’t have rights under the Compassionate Use Act ,” says Brand, “and Prop. 64 specifically states that employers have the right to implement drug free policies. So the power is with the employer— they can deny employment to someone who uses cannabis, regardless of use. What happened in the Ross vs. Ragingwire case could very well happen today.”
So there you have it folks: Nothing on the employment front is changing with the passing of Prop. 64. "If you're looking to get hired and you know you have to take a drug test, don't think you're in the clear just because you have a doctor's recommendation," Brand said. "Cannabis rights don't yet exist for the California employee."