California Proposition 19 – Marijuana Legalization Strips Employers of Liability Protection


Current marijuana laws have made criminals out of millions of Americans who love smoking it. Untold thousands have served prison time for marijuana use. Organized crime has reaped I don’t know how many billions of dollars in marijuana trade. And many people have died in that criminal traffic. So let’s legalize it! No!

One can look to alcohol prohibition and determine that we are much better off having re-legalized and controlled the sale, distribution and use of alcohol. We eliminated much of the criminal traffic in alcohol and saved our citizens from unnecessary intrusion into their personal lives by the police. So then we should legalize marijuana now! No!

But we can make lots of money taxing marijuana users, just like we do with cigarette smokers. We’d build bridges, schools, cultural centers, roadways, on the backs of people who are happy to get a legal high. So let’s make it legal and tax the hell out of it! No!

There are sound moral, legal, financial, religious, cultural and medical arguments for and against the legalization of marijuana.

I won’t convince anyone in this post to change their position.

So why bother saying anything if people’s minds are made up?

As an employer or manager, you should vote No because if a liability occurs due to the negligent abuse of marijuana, there will be no easy way of proving it in court. Since marijuana lingers in the system long after it’s’ use, how do you easily determine when or where it was used. At what point is one not intoxicated?

Under California Proposition 19, attempts by employers to maintain a drug free workplace will be impossible. An employer can state that they require a drug free workplace. But you can’t discipline a marijuana user if you can’t prove that the activity happened on the job. Under Prop 19, a marijuana user can smoke freely on his or her personal time. That includes lunchtime or any legally required breaks. Not all, but many marijuana user will come out of the woodwork, openly smoking and flaunting their habit, regardless of the public welfare. Marijuana users themselves joyfully associate use with a lazy, devil-may-care mentality. Why should they care more about their employers than their right to a smoke during break?

What impact would this have on factory line injuries? Do we have a definition of what defines marijuana intoxication? No. In the past, possession was enough to prosecute. If Prop 19 passes, employers will be stripped of any protections from liability claims… many of which will come from workmen’s compensation claims of marijuana users who are injured due to their own irresponsible behavior.

How are service companies with a mobile work force to protect themselves against liabilities stemming from marijuana induced traffic accidents? The post-accident finding of marijuana in the system of a marijuana user does not prove intoxication and cannot identify any clear timeline. Was the use on the job or off the job? Did it constitute impairment? Was the accident simply fate and the smoking just a secondary unrelated, personal time activity? We’ll never know.

Drug testing is expensive. Preventive random drug screening of all employees would be even more expensive. Even if drugs were found in the system of drug users, what recourse would there be if you can’t identify the place and time of intoxication or what constitutes intoxication?

No amount of testing will protect employers from lawsuits and workmen’s compensation claims. Employers will be stripped naked, laid bare at the mercy of legal drug users.

This legislation will kill trust between workers and employers. It is anti-business. It will unjustly force many businesses to close and others never to open. If workers value their jobs and the growth of our economy, they too should seriously add employer liability as a reason to vote against this flawed proposition.

Despite the allure of reaping billions of dollars in tax revenues and saving so much human pain from the current criminal status of marijuana, my argument here is only one of the many unintended side-affects of marijuana legalization.

Vote No on Proposition 19.

Aside from my vote on California Proposition 19, I oppose harsh penalties for possession of small quantities of marijuana.

California Proposition 19 simply goes way too far for me.

For independent investigation of this topic:
Yes On 19
No On 19

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12 Responses to California Proposition 19 – Marijuana Legalization Strips Employers of Liability Protection

  1. Mel says:

    It is a coincedence you posted the topic today. Last night I was pondering if marijauna legalization would become the norm across the United State after reading an article regarding the prohibition on alcohol being lifted after our country fell into the economic depression.

    Alaska airlines has enforced a ban on the use of nicotine for well over twenty years. When the rule was enacted they “grandfathered” the nicotine users and as a term of employment the employment contract forbid nicotine use. Many employers have expectations of employees conduct off the job. I’ve read about people being fired for “legal” conduct off the job from blogging to working as a stripper. Iam guessing California employers will find a way to circumvent prop 19 if it should pass. Futhermore, if it were to pass I’d use my employment contract forbiding legal use of marijauna as a marketing tool. “Crackhead free employer” would be included in my ads.

  2. Gerry says:

    Thank you very much for contributing to our blog with you own thoughts and humor.

    I don’t know that the average American will ever understand what employers go through to survive, support their employees and make a profit, large or small as it may be.

    Using a political campaign as a marketing tool is a thought. I think people would want service from a “Crackhead free employer.” The caveat is that half the population seems to be smokers and the majority are experienced smokers. If I say I have a crackhead free workplace, I’m going to have to enforce it. But how can I? According to Dr. Bob Blake, interviewed for today’s opinion piece by Logan Jenken in the San Diego Union Tribune, it will not be possible to get good reading of intoxication with blood testing, like you can with alcohol. You would need to identify behaviors indicative of intoxication. That could be very subjective. The police may continue to do this, but how are employers going to follow their drivers around looking for strange driving patterns?

    The only chance I would have of getting employees who are definitely not marijuana users is to go much further than random drug testing and start using lie detector tests. How well would random drug tests and lie detector tests go over with employees, new and old? I just see this law opening up employers to all sorts of insurance claims and employee lawsuits. Not to mention the bureaucratic confusion created by local ordinance overrides. If Proposition 19 were to pass, it could also have the indirect consequence of making marijuana users unhireable! Why would any employer hire a marijuana user if they can discover it before employment and cut this risk. That would be a job killer!

    As far as marketing “Crackhead free employer.” I can see the picture and headline now in the newspaper, “Crackhead Free Employer’s Employees Toke in the Park on Lunch Hour.”

  3. tekt says:

    You are incorrect about your position and statements regarding the legalization of marijuana. As an employer you can forbid your employees from the recreational use of any substance that you want, whether it be alcohol, marijuana, or tobacco based products.
    It is perfectly legal for an employer to have a policy against tobacco or marijuana use, and they can terminate employees for violating their policies.
    http://www.thebostonchannel.com/r/9959391/detail.html

  4. Gerry says:

    I would be happy if you could point out where I can control the behavior of employees off the job. We had a guest speaker, a lawyer, representing Yes On 19 at the San Diego Chamber of Commerce. He said that the employee will have a full right to smoke pot on his lunch break. I don’t see how I can do otherwise. I can’t forbid him from eating fast food or smoking a cigarette on his break. How am I going to stop him legally from smoking a legal substance on his personal time.

    Perhaps, if he is in uniform, I have some recourse. I point is arguable. But on the surface, he is free in his free time. That’s why they call it free time.

  5. tekt says:

    If you had followed my link, you would see that the court has ruled that employers can regulate and/or forbid legal behavior of their employees. If an employer can forbid employees from the legal use of tobacco or nicotine products, then they can most certainly forbid the use of marijuana as a condition of employment.

    Currently alcohol is a legal substance, yet employers are not required to allow employees to consume it while on their break, much less to provide areas for consumption.

  6. Gerry says:

    Thanks. I’m multi-tasking and missed the link. I did go back and read it.

    The article was not a legal brief or legal source. You referenced a human interest TV story. It mentioned that laws differ between states. Do you know what the law is in California? I’ll go back and check on this question about regulating behaviors that are done outside the workplace, but then show signs of that disapproved conduct on the job. As I mentioned, the legal source in favor of Prop 19 who was at the meeting stated that I cannot control this conduct. But lets both gather some more information. A TV report just is not enough. Also, I am sure there are differences in how these 28 states with such laws have implemented them.

    Truly, thanks are in order for adding to the discussion.

    Gerry

  7. tekt says:

    I don’t need to “gather more information”. Your comment was regarding the effects of legalizing marijuana in California, and stated that employers would have to allow for the consumption of marijuana by employees during their break times, and that’s just not true. Do you allow employees to consume alcohol on their breaks, or provide an area for consumption? Are employees allowed to work when impaired by the consumption of alcohol that was consumed “on their own time”?

    The link I gave was to more than a “human interest story”, and gave you the tools to research that particular case that was showcased on CBS 60 Minutes, which included the outcome of the courts decision in the case, and the involvement of a Congressman regarding the employers ability to restrict an employees legal behavior, and revealed there are no laws against employer sanctions regarding legal behavior of there employees.

    I’m familiar with the employment laws in California as it is an “at will” state regarding employment which means employees can be terminated for any reason provided it’s not for sex, race, religion, etc. I know of employers who do not hire smokers, and that will terminate anyone they find using tobacco on or off the job, and it’s perfectly legal.

  8. Gerry says:

    You should be citing California law, not some Boston based TV report. Even a show like 60 Minutes could not make a blanket statement about laws that differ in 50 states.

    I spoke about breaks from work. Not all breaks occur on-site. You’d be hard pressed to control behaviors on an off-site break, especially any break in the workday that is an unpaid break, such as lunch hour. In my pest control business, workers are often off-site. It would not be hard for a worker to declare that he was on unpaid time during the smoking activity. No employer with a mobile work force can monitor this closely.

    I personally could consume alcohol on my lunch hour and have a clear understanding of level of intoxication at the end of the hour. There are many researched based charts on this subject that are well understood in the scientific community. The same thing cannot be said about marijuana. Employers and possibly the employee would not have a clear understanding of the level of intoxication if an employee was to return from smoking marijuana on a lunch hour.

    You may know something about “at will” employment. You don’t know, and I will tell you, that the employer will still be stuck with unemployment compensation and possibly a lawsuit. And just because you fire someone “at will” does not mean that it could not be considered a wrongful termination.

    While the law simply states that marijuana is illegal, it is a clear cut case that employees can’t have it, smoke it, etc. But if it is legal, then the provisions of the law that you cite are upon the employer to uphold and manage. Burdon of proof would be on the employer. If an employee handbook is one word to the left or one word to the right, one word too little or one word too much, then it will be the smoking employee who has the upper hand. Laws regarding behaviors not permitted though legal are going to cause a much more difficult case for the employer to prove than something simply illegal. Now, we can state things plain and simple with regard to marijuana, but under the provisions you discuss, we are really talking about a broad range of behaviors and legal tests of that provision which covers a much wider range of concerns and thoughts. There have been many cases regarding permissible behaviors and conduct. There is much more give and take, back and forth on these issues in the legal system. I would not place much faith in these provisions.

    I go back to my original thoughts on employer-employee trust. Life is tough for those who use marijuana illegally. They do it by choice. They take the risk. They are getting involved in an illegal trade at their own risk. But make it legal and you will see that employers will do everything in their power never to hire someone who has used marijuana anytime in the recent past. If you think people have a hard time finding employment today, I guarantee you they will have a much harder time finding employment in the future.

  9. Gerry says:

    Here is an FYI on an article by the Huffington Post in which it reviews the opposition of the California Chamber of Commerce.
    http://www.huffingtonpost.com/2010/08/12/proposition-19-california_n_680493.html

    While, AOLnews contributor, Dana Chivvis summarizes the position of the California Chamber of Commerce, citing specific cases where smoking marijuana was not enough for the courts to determine that the weed caused impairment and ruled against the employer.

    http://www.aolnews.com/surge-desk/article/california-chamber-of-commerce-takes-a-pass-on-grass-in-the-work/19591870

    These are all good food for thought.

    Going back to my original position. Good law is clear law, with few ambiguities open to interpretation. That is not always possible to achieve. But Prop 19 will surely make a big mess of it!

  10. tekt says:

    The California Supreme Court has ruled that employers may terminate employees who test positive for marijuana use that is in violation of the employers employment policies even if the employee has received a prescription from their licensed M.D., obtained a state issued medical marijuana card, and made the purchase from a licensed medical marijuana dispensary.

    There is no indication that the courts would offer legal protections to recreational marijuana users that currently do not apply to those who legally qualify for legal possession and use of marijuana under the current California Compassionate Use Act, (prop 215).

    If prop 19 were to pass in California, it would restrict access to minors (just like alcohol), it would remove control of this enormous commodity from the criminal element, it would generate a huge tax income as it is currently California’s largest cash crop, it would free up valuable police and courts time and cost, and if the repeal of prohibition was an indicator, per capita consumption would decline as well.

    At the end of the day, employers will still have the choice to deny employment to those who choose to use marijuana. Seems like a win, win situation to me.

  11. Gerry says:

    Thank you for a very sound reply. I am glad we are flushing out details and arguments on both side. I totally agree with your third paragraph. I hope you understand why employers are worried. Some are naturally a conservative bunch. Others are not. But we love our businesses and we are passionate about protecting our workers health and financial welfare. Anything that causes financial hardship for a company eventually effects the bottom line and in so doing cause job losses.

    I found this article, “Justice Ruling Clouds Medical Marijuana in Workplace,” from the North Bay Business Journal, generally supporting your point, though concluding that the waters are still a bit murky. “California and federal laws generally permit an employer to prohibit drug and alcohol use in the workplace. However, regulation of such conduct must be balanced with privacy and other employee rights.

    Employers should strive to implement an effective workplace drug and alcohol policy that protects the rights of all employees. Careful consideration must be given before terminating or disciplining an employee for drug- or alcohol-related conduct. For employers, a measured approach in this murky area is the best prescription for success.”

    My understanding of the reviews of this California Supreme Court ruling is that it hinges on the fact that marijuana is still illegal under federal laws. Clearly the analysis will need to be revised if ever we have federal legalization. That is not to say that one should make a decision in November based on future federal rulings. This article in Stoel Rives World of Employment, “Oregon Supreme Court: Oregon Employers are Not Required to Accomodate Medical Marijuana Users,” speaks to this point that current rulings supporting the employer perspective while marijuana is still illegal under federal law. Therefore, the stance of the California court hinges on a contradiction in state and federal law.

    You are probably aware and supportive of the dissenting opinion on this case, presented in Stop The Drug War.org,

    “Justice Joyce Kennard was scathing in her dissent. The decision was ‘conspicuously lacking in compassion,’ she wrote. ‘The majority’s holding disrespects the will of California’s voters.” The voters “surely never intended that persons who availed themselves’ of the medical marijuana act ‘would thereby disqualify themselves from employment,’ Kennard said.

    Reaction was rapid and only beginning on Thursday evening. The Los Angeles Times reported that Assemblyman Mark Leno (D-San Francisco) announced the same day he would introduce legislation to prevent employers from discriminating against medical marijuana users. ‘The people of California did not intend that patients be unemployed in order to use medical marijuana,’ he said.

    Bruce Mirken of the Marijuana Policy Project (MPP) told the Times the decision was a slap at patients. ‘The court is claiming tha California voters intended to permit medical use of marijuana, but only if you’re willing to be unemployed and on welfare,’ Mirken said. ‘That is ridiculous on its face, as well as cruel.”

    You probably agree that if the law was to pass, there is likely to be a long period of legal testing about employer policies, privacy rights, what would constitute proper and reasonable testing.

    Thanks again for your contributions to this discussion. Let’s “hash” it out.

  12. Ideal Medical Weed Vaporizers…

    […]California Proposition 19 – Marijuana Legalization Strips Employers of Liability Protection « Hearts Consulting Group, LLC – People and Pest Control Blog[…]…

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