Last week, California state election officials announced that an initiative to legalize marijuana will appear on the November 2010 ballot. This initiative would allow anyone 21 years of age or older to "possess, cultivate or transport marijuana for personal use." If the initiative passes, it would be legal in California for adults to possess up to an ounce of marijuana and to grow it in a 25 square-foot area for personal use. Similar to the regulation of alcohol and tobacco, the initiative will also give local governments the ability to control and tax the sale of small amounts of marijuana.

California already limits general employee and applicant drug testing. If this initiative becomes law, California employers' right to take action based on drug use will likely be even further restricted.  Under the State's present law, random drug tests are generally not permissible, except for employees in safety sensitive positions. The initiative explicitly states that it is not intended to affect the application or enforcement of any law prohibiting use of controlled substances in the workplace or by persons in public safety positions. If this initiative passes, employers will likely still have the ability to discipline an employee who is suspected to be using or under the influence of marijuana while at work. However, employers would likely be unable to take action against an employee who tests positive for marijuana (for example as the result of a reasonable cause test), but is only using it for recreational use, and is not using or under the influence of it while on the job.

Even if California votes to legalize the recreational use of marijuana, it will still remain illegal under federal law, which will pose a host of unresolved issues and could put California on a collision course with the federal government. Furthermore, any federal alcohol or drug testing laws which conflict with California laws will still take precedence. Employers with California operations should monitor developments related to the initiative.