by David Downs
Today the California Chamber of Commerce, one of the most powerful lobbies in Sacramento, held a press conference bashing Prop 19, claiming employers would have to permit employees to smoke marijuana at work. But First Amendment lawyer and Prop 19 author James Wheaton says the Chamber is lying. Employees don't have to let workers come to work drunk, and they wouldn't have to let them come to work high. Furthermore, employers can already fire employees at will, as well as if they fail a drug test, and that will not change if Prop 19 passes. On page 3 and 4 of the Prop 19 text it states "This Act is not intended to affect the application of enforcement of the following state laws relating to public health and safety or protection of children and others: ... nor any law prohibiting use of controlled substances in the workplace or by specific persons whose jobs involve public safety."
CalChamber says employers would lose millions in federal contracts and grants because they would be unable to comply with federal laws outlawing marijuana use. Activists note that opponents of Prop 215 said the same thing about medical marijuana fourteen years ago, and it did not take place. California courts have upheld business owners' right to fire anyone who tests positive for THC.
Jennifer Shaw, a labor litigator for the Chamber notes, "There's actually very little in the proposition that addresses the workplace."
Shaw says Prop 19 also allows employers to fire employees immediately if they see an “actual impairment,” but there is no definition of actual impairment and that could lead to lawsuits.
“It's not a term of art in California law,” she says. “This is going to add to the plaintiff's arsenal.”
The California Chamber of Commerce said they are already exasperated at the amount of protections employees have in California. Easily discriminating against recreational cannabis users is one of the few benefits of doing business in the state.
In an e-mailed statement, Wheaton elaborated:
"Nothing new here. Everything it says is a lie, including 'and' and 'the.' The memo barely even mentions the explicit carve-outs regarding dangerous activities and actual impairment. It simply runs with the 'non-public place' way beyond what the law in fact says. And it completely misses that the initiative makes no change to existing law regarding private property and what one can bring or do on it. When someone has a spin there's no point in arguing. They simply lie as this memo does. I am surprised at how poor the work is, though.
"The law will continue to prohibit bringing cannabis anywhere the landowner, employer or anyone else prohibits it, just like today. And the law only protects people who do it lawfully, away from work and are not impaired. Why do you want to take action against things that don't affect the workplace?"