Pubdate: Sun, 15 Aug 2010 Source: Record Searchlight (Redding, CA) Copyright: 2010 Record Searchlight Contact: http://www.redding.com/ Details: http://www.mapinc.org/media/360 Proposed section 11304, subsection provides that: "No person Source: Record Searchlight (Redding, CA) Pubdate: 15 aug 2010 Author: Ed Rullman Note; Ed Rullman is general manager of the Best Western Hilltop Inn in Redding. PROP. 19'S 'PRETTY CLEAR' INTENT IS NOT GOOD ENOUGH The Record Searchlight both misses and hits the point in its recent editorial on Proposition 19, the initiative to legalize the recreational use of marijuana and its potential impact on drugs in the workplace. ("Prop. 19 won't leave workers high on duty", Aug. 1). The Record Searchlight writes that the "intent" of the initiative is "pretty clear" in the preamble as it "specifically states that it is not meant to 'affect the application or enforcement' of public health and safety laws including 'any law prohibiting use of controlled substances in the workplace or by specific persons whose jobs involve public safety.' " Yes it sounds "pretty clear," until you keep reading. Los Angeles District Attorney Steve Cooley's analysis of the initiative notes that while the preamble includes that kind of clarity, the actual controlling section does not. Proposed section 11304, subsection (c) provides that: "No person shall be punished, fined, discriminated against, or be denied any right or privilege for lawfully engaging in any conduct permitted by this Act." Cooley writes: "Since this provision protects all 'conduct permitted by the Act,' a California employer will no longer be able to screen job applicants for marijuana use; regulate any employee conduct related to the use, transportation, or cultivation of marijuana, unless the employer can prove job impairment; or choose to maintain a drug-free workplace consistent with federal law." Proposition 19 proponents claim that the second half of Section 11304 - -- "provided, however, that the existing right of an employer to address consumption that actually impairs job performance by an employee shall not be affected" -- protects employers' ability to fire workers for being stoned on the job. But that places the burden of proving what "actually impairs job performance" onto the employer. Even advocates for marijuana legalization see this as a huge loophole. National Organization for the Reform of Marijuana Law Stash Blog writer Russ Belville said in his analysis of this section: "This is a big one. You can't be punished or denied privileges based on pot smoking. The only exception is employers preventing you from smoking pot on the job. Note the 'actually impairs job performance' language. This is the loophole through which some attorney is going to drive a big truck delivering us freedom from workplace pee testing for cannabis. Pee test metabolites do not prove workplace impairment." (July 17, 2010). This is exactly the same conclusion the California Chamber of Commerce arrived at when it analyzed the initiative. The chamber found that employers would be faced with the burden of proving that an employee who is suspected of being under the influence is "actually impaired" from performing the job before taking any adverse action against the employee. As drug screening will no longer be permissible, this becomes impossible, meaning employers cannot "discriminate" or legally prevent employees from doing their jobs, thus giving up all former liability standards protecting employers from individual action. The actions of an intoxicated employee become the responsibility of their respective employer. Whether by design or simple sloppiness, it's clear that the goals stated in the opening paragraphs of the initiative are at odds with the legal language they actually used to define those goals. The fact that this editorial board was confused exemplifies the uncertainty and ambiguity written into the measure. Maintaining a drug-free work environment would become impossible -- you can't smoke it at work, but nothing says you can't toke up beforehand. This is a real problem with Proposition 19 and no matter whether you support the legalization of marijuana use for individuals or not, this poorly written measure goes too far. The potential dangers concern employers, but they should also concern you. - --- MAP posted-by: Jo-D