Pot in California

Legal pot in California: Can businesses set limits on what workers do in their free time?

California Highway patrol Lt. Robert Brunell, second from right, talks about legal marijuana rules under Proposition 64, at a forum held Tuesday, Jan. 10, 2017 in Visalia, California. From left to right, attorney Brett Sutton, Visalia Police Capt. Brian Winter, Tulare County Sheriff’s detective Tim Johnson, Brunell and Tulare County Assistant District Attorney Kerri Lopez.
California Highway patrol Lt. Robert Brunell, second from right, talks about legal marijuana rules under Proposition 64, at a forum held Tuesday, Jan. 10, 2017 in Visalia, California. From left to right, attorney Brett Sutton, Visalia Police Capt. Brian Winter, Tulare County Sheriff’s detective Tim Johnson, Brunell and Tulare County Assistant District Attorney Kerri Lopez. lgriswold@fresnobee.com

The legalization of recreational use of marijuana in California under Proposition 64, approved by voters last year, is raising concerns in the business community about what is allowed and what is not.

To answer questions, the Visalia Chamber of Commerce and the Visalia Economic Development Corporation on Tuesday hosted an early morning panel discussion on the topic. About 75 people attended.

Employers still can ban marijuana from the workplace and even fire someone for being under the influence at work, said Brett Sutton, an employment law attorney at Sutton Hague law corporation in Fresno.

“Marijuana is still illegal under federal law,” Sutton said. “As an employer, you’re still under federal law.”

It is still illegal to smoke (marijuana) in a public place, so if your employees go out to smoke a cigarette, it’s not OK for them to smoke a joint.

Kerri Lopez, Tulare County assistant district attorney

Although an employer cannot discriminate against someone for engaging in lawful, off-duty conduct, the California Supreme Court already has ruled in a medical marijuana case that “it’s still illegal under federal law, so it’s still unlawful conduct,” Sutton said. He expects that to remain the rule and survive any challenge.

Meanwhile, existing rules that govern workplace drug testing are still in effect, he said. Random drug testing is not allowed, he said.

Kerri Lopez, assistant district attorney at the Tulare County District Attorney’s Office, said marijuana remains a controlled substance.

“It is still illegal to smoke (marijuana) in a public place, so if your employees go out to smoke a cigarette, it’s not OK for them to smoke a joint,” she said.

Under Proposition 64, someone 21 or older may use marijuana.

Gail Zurek, president and CEO of the Visalia chamber, said employers are asking how to know if an employee is under the influence of marijuana.

Employers should educate themselves about the signs and symptoms of marijuana use, such as red, watery eyes, the odor of marijuana or changed behavior, California Highway Patrol Lt. Robert Brunell said.

“It’s obviously not as straightforward and simple as evaluating a person under the influence of alcohol,” he said.

Zurek said some employers want to know how long someone is likely to be impaired after using marijuana. As a rule of thumb, the user will feel the effects for three or four hours, Brunell said.

There is no agreed standard for what amount of marijuana makes a person impaired, law enforcement representatives said. “We are longing for a definitive measurable amount, like we have in alcohol, because then it’s very black and white,” Visalia police Capt. Brian Winter said.

Employers should have a manager trained to recognize if someone might be under the influence of marijuana, Sutton said. “If you don’t have people trained and you test somebody and you fire them, you could be sued for that if you can’t prove reasonable suspicion,” he said.

We don’t have any clear rules. We have a highway with no speed laws.

Zack Davis, Visalia

After the meeting, employment consultant Noel Zuniga of Visalia said the session shed light on the issue of recreational marijuana and the workplace.

“This is something I think will affect businesses tremendously,” he said. “If they’re not prepared, they’re going to get blindsided with a lawsuit.”

Zack Davis of Visalia said he wants to open a business where marijuana can be prepared for consumption and possibly consumed on site like a hookah bar, which is forbidden under current local ordinances.

“We don’t want to get arrested,” he said. “We don’t have any clear rules. We have a highway with no speed laws. Who is going to determine the speed limit?”

Winter said the city is working on the issue but is concerned about “unintended consequences,” including homelessness as has occurred in Colorado.

“We’re going to be discussing this issue and whether or not we’re going to impose restrictions – allow or not allow – in our cities some of the dispensaries themselves,” he said. “We need to dig into this and not necessarily move fast, but move smart on this.”

Lewis Griswold: 559-441-6104, @fb_LewGriswold

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