The Employment Impacts of Recreational Marijuana Legalization in California

California marijuana law has recently been undergoing dramatic changes. Prop 64 passed, legalizing recreational marijuana. But what are the impacts for employees at work – can you use recreational marijuana at work? What changes were made for medical marijuana at work? What about drug tests? Also, what about Marinol, the synthetic medicinal FDA-approved drug? This article examines all of these questions.

What Does Proposition 64 Change? Recreational Marijuana at Work

Now that it has passed, Proposition 64 will make the following changes to California law. People 21 years or older will be allowed to:

  1. “Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of marijuana not in the form of concentrated cannabis;
  2. Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than eight grams of marijuana in the form of concentrated cannabis, including as contained in marijuana products;
  3. Possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants;
  4. Smoke or ingest marijuana or marijuana products; and
  5. Possess, transport, purchase, obtain, use, manufacture, or give away marijuana accessories to persons 21 years of age or older without any compensation whatsoever.”

So, what does this mean? Basically, if you are 21 or over you may possess no more than 28.5 grams of non-concentrated cannabis and can even give it to your friends or family so long as they are also 21 or over. The important word here is “give.”  There cannot be any exchanging of money or else it becomes a sale which is still illegal. These rules also apply to 8 grams of concentrated cannabis and marijuana accessories. The rest of the proposed changes are fairly easy to understand in that you can up to six marijuana plants and smoking or ingesting of marijuana is legal. Because it is illegal to sell marijuana, concentrated cannabis, or the plants (outside of medicinal dispensaries), the question many people ask is where they would obtain it if it is legal to use, but not sell? The answer to that is the “give” wording provided.

What Doesn’t It Change?

Because it is a state proposition, it does not change the fact that possession of marijuana is still illegal in the eyes of the federal government. Furthermore, Prop. 64 does not change “[t]he rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession . . . in the workplace . . ..” This means that even though it is legal, medicinal marijuana at work, recreational marijuana at work, and drug tests are still very much unchanged.

If I Am a Disabled Employee, May I Use Medical Marijuana at Work?

With the changes in the law, this area is a little foggy. Though recreational use is no longer illegal in California, it is still illegal to use it in public areas or bars. Various places will eventually be able to apply for a license to consume on-site (think liquor license) pending local laws, but there is no specific timeline for these regulations. On top of that, even if your local laws allow for consumption in your specific workplace, case law established in Ross v. Raging-Wire Telecommunications, Inc. stated that CA disability discrimination laws “[do] not require employers to accommodate the use of illegal drugs.”  Again, marijuana is legal in California, but not on the federal level. Until the federal government legalizes marijuana it will be in this crazy state of legal and illegal at the same time. It will be interesting to see where this goes in light of the Proposition 64 passing, but at this point in time it is best to NOT risk your employment with medicinal marijuana use on the premises.

Finally, we can say that you most certainly should not use medicinal marijuana at work if your job includes driving. Proposition 64 establishes many rules restricting the driving under the influence of marijuana much like those with alcohol.

What About Marinol?

For those that are unfamiliar with Marinol, it is a synthetic form of THC, which is the active ingredient in cannabis. While Marinol is a prescription drug approved by the Food and Drug Administration, the problem with getting a prescription and medicating with it immediately is that it will still trigger a drug test to show as marijuana usage. So, while Marinol may be a viable alternative to medical marijuana at work, you will definitely want to obtain a prescription from your doctor and probably want to speak with your employer about this as a reasonable accommodation to your pain and/or disability.

Quickly, we cannot condone, nor recommend, the obtaining of a prescription for Marinol for the purpose as a substitute for recreational marijuana at work.

What Other Options Do I Have?

With recreational marijuana at work and medical marijuana at work currently off the table as options and the drug test still in play, you probably only have a few options available to you. First, the obvious one is consulting with your physician on other alternatives to managing your pain. In all likelihood, if you have discussed medical marijuana at work with your doctor you have also gone through these other options. Secondly, you may consider taking a medical leave or disability leave. California has laws in place that recognize unexpected health issues arise and you should not lose your employment because of it. Generally, these types of leave, while different, enable you to take the time necessary to recover from your injury or place your employer in a position to discuss reasonable accommodations for you to continue your employment. If this is the path you decide to take, you will want to consult with a leave lawyer to discuss your rights in this situations.

The main thing to remember with the passing of Proposition 64 is that we are in a fluid state with medical marijuana at work and potentially recreational marijuana at work. The drug test that everyone has been subjected to is still currently in place. Almost all of the laws that were there before are still in place, but with a twist. In a few months, half of the information in this post may be obsolete, we will just have to stay tuned.


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