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How Might the Legalization of Marijuana Affect Your Business?

by Aneeta Kumar

On November 8, 2016, California voters adopted Proposition 64, the Adult Use of Marijuana Act, which legalizes the possession of marijuana for recreational use by adults age 21 or older. This new law may raise questions and concerns for business owners so I have asked two of the attorney members on NAWBO-OC’s the Public Policy Committee to share some thoughts. 

According to Employment attorney Colleen McCarthy of Ferruzzo and Ferruzzo LLP, this law does not prevent employers from maintaining a drug-free workplace, or having an employment policy that prohibits the use of marijuana by applicants and employees.  She cautions that while the new law decriminalizes recreational use of marijuana, it specifically allows employers to enforce their workplace polices prohibiting the use of recreational marijuana. Employers may continue to make employment-related decisions based on pre-employment marijuana screens and withdraw an offer of employment made to a prospective employee if the individual tests positive for the use of marijuana, regardless of whether the marijuana was used for recreational or medicinal purposes.  Accordingly, Colleen suggest that employers review their existing drug-free workplace policies to ensure that they include a statement that marijuana use is prohibited by the company.

Immigration attorney Lisa Ramirez of U.S. Immigration Law Group, LLP further cautions that despite this change in state law, federal law supersedes state law and the use of marijuana may still be considered a deportable offense under the Immigration and Nationality Act, a federal law.  Any conviction of a controlled substance offense will make an immigrant deportable unless it is a first conviction relating to possession of 30 grams of marijuana or less. 

As a result, any employee that is not  a U.S. Citizen, including lawful permanent residents, can be placed in deportation proceedings (formally known as removal proceedings) and physically removed from the United States should they admit to, or be convicted of, a drug related offense such as using or possessing marijuana.  They also could be deprived of the opportunity to pursue permanent residency status at any time in the future.  Further, if the non-U.S. Citizen employee travels abroad, she can be refused admission back into the country on the mere basis of having used or possessed a controlled substance

Now that marijuana is legal, employers should consider having written rules and procedures to deal with the issue and also consider educating their employees regarding potential consequences.

Aneeta Kumar is the NAWBO-OC Vice President of Public Policy. She is an attorney and partner in Kumar & Gerchick. Her practice focuses on assisting policyholders in obtaining maximum recovery from their insurance carriers for claims and losses, litigation expenses, settlements and judgments.