Eleven states have employment laws protecting medical cannabis patients against employment discrimination. California is not currently one of them. In 2008, the California Supreme Court held that employers could terminate employees for off-work cannabis use even if such use is for medicinal purposes and lawful under California’s medical marijuana laws. A lot has changed since the California Supreme Court decided this issue a decade ago. California voters have since passed law legalizing recreational use of cannabis, and many California employers are wondering what rights they have to not hire and/or to terminate employees who test positive for cannabis. The California Legislature may soon clarify employer and employee rights in California vis a vis off-work cannabis consumption through Assembly Bill (“AB”) 2069, which was introduced on February 7, 2018.
AB 2069 proposes an amendment to California’s Fair Employment and Housing Act (“FEHA”) by expanding its scope to prohibit an employer from engaging in employment discrimination against a person “on the basis of his or her status as, or positive drug test for cannabis by a qualified patient or person with an identification card.” Accordingly, an employee who demonstrates that his or her physician has “determined that person’s health would benefit from the use of marijuana” or can provide his or her employer with a “cannabis identification card” will be included in the list of protected classes under FEHA.
This would mean that an employer who discovers that one of its employees, or a potential employee, is a medical cannabis patient, or that the employee tested positive for cannabis, cannot:
refuse to hire or refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment or to bar or to discharge the person from employment or from a training program leading to employment or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
There are several important exceptions to AB 2069. The first exempts employers who would “lose a monetary or licensing-related benefit under federal law” if they failed to maintain a drug-free workspace. Because the federal Controlled Substance Act continues to classify marijuana as a Schedule I drug, this exception would exempt employers who must maintain a drug-free workspace in order to maintain or bid work with the federal government. In such cases, an employer could refuse to hire or could terminate an employee without running afoul of the proposed amendment to FEHA. The second exception would permit an employer to terminate an employee who uses cannabis on its premises, or employees who are under the influence while working.
While AB 2069 has not yet been voted into law, its introduction is consistent with a growing number of states that have implemented, or are considering, laws that offer greater protections to employees who use medicinal cannabis outside of working hours.
According to recent polls conducted by Gallup and the Pew Research Center the majority of Americans support legalization of cannabis for either medicinal or recreational purposes. With growing acceptance of medical and recreational cannabis in the United States, employers should expect continued activity regulating employer and employee rights in this area.
While the fate of AB 2069 is unknown, California employers would be wise to track AB 2069 as it makes its way through the California legislature. The text of the proposed bill can be read and tracked here. If you have questions or concerns regarding your practices or policies regarding this emerging area of law, contact the authors or your trusted counsel at AALRR.
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