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Institute for a Drug-Free Workplace takes strong stand against California initiative to legalize marijuana

On November 2, Californians will vote on Proposition 19, the Regulate, Control and Tax Cannabis Act of 2010, a marijuana legalization ballot initiative that would make it legal for anyone 21 or older to possess, share, or transport up to an ounce of marijuana for personal use and to grow up to 25 square feet per residence or parcel. The legislation would authorize cities and counties to regulate and tax commercial marijuana production and sales. If it passes, Proposition 19 will have a far-reaching impact on employers and employees, among other constituencies.

One supporter of Proposition 19, Mike Honda, a California Democrat who represents Silicon Valley, was quoted as saying that he is leaning toward voting yes on Proposition 19. “It’s like driving or drinking: We have a certain age, then you have that privilege and if you abuse it you lose it. I don’t think this is any different, just like other kinds of legalized behavior.”

In stark contrast, Mark A. de Bernardo, executive director of the Institute for a Drug-Free Workplace, speaking at a September 13 press conference of opponents to Proposition 19 at the National Press Club in Washington, DC said, “The initiative represents a reckless retreat in our long-standing—and successful—national policy on substance-abuse prevention, would severely compromise employee safety and health, and poses a significant threat to employers, employees, and the public at large.”

Of particular relevance to employers is Proposition 19 Section 11304(c), which reads: “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. Provided, however, that the existing right of an employer to address consumption that actually impairs job performance by an employee shall not be affected.”

In other words, California employers would not be able to use an employee’s marijuana use in hiring and firing decisions. “The `actually impairs’ language is extremely problematic because it shifts the burden to employers to demonstrate the hard-to-quantify actual impairment (and under California case law, business necessity), not just use,” de Bernardo told CCH in a follow up interview. “Furthermore, this language would create a new cause of action for marijuana smokers—discrimination based on “lawfully engaging in any conduct” under this act, namely marijuana use—and would vitiate the basis for all pre-employment drug testing.”

“Employees who engage in substance abuse are 3.5 times more likely to be involved in workplace accidents that injure themselves and/or another person, and are 5 times more likely to be involved in an accident off-the-job which, in turn, affects attendance or performance on-the-job,” de Bernardo continued. “Of critical importance in an increasingly competitive global economy, substance-abusing employees are one-third less productive, and incur higher health care costs, have poorer attendance records, and are subject to more turnover.”

“The impact on the workplace would be severe,” de Bernardo continued. “Substance abusers, including those who regularly use marijuana, are more lethargic, less focused, impaired in their motor coordination, impaired in their judgment and perception, and less motivated. And yet, if Proposition 19 is passed, we may create a significant workforce subgroup that is defined by such characteristics, including use and abuse of marijuana on the job, and California employers would be rendered virtually powerless to do anything to prevent it.”

“The ultimate irony,” de Bernardo told CCH, “is that if Proposition 19 passes, California employees would be prohibited from smoking tobacco at work, but virtually guaranteed the right to smoke marijuana at work.” California lawmakers are currently working to ban tobacco use in the workplace because of its health risks to co-workers and the public.