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.