Although both medicinal and now recreational consumption of marijuana have been legalized in California, this legalization did not impact an employer’s right to discipline or even terminate employees for marijuana use. That could change for medical marijuana users if a bill pending before the California legislature becomes law.

Two weeks ago a bill was introduced to protect medicinal marijuana users in California. On February 7, 2018, Assemblymen Rob Bonta and Bill Quirk introduced Assembly Bill 2069 (AB 2069), which seeks to prohibit an employer from discriminating against employees “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.” The bill would add medicinal marijuana patients to the list of protected classes under the anti-discrimination statute in California’s Fair Employment and Housing Act (FEHA).

California is not the first state to introduce such a law. In fact, effective February 1, 2018, Maine’s recreational marijuana law prohibits adverse employment actions related to off-premises marijuana use.

Needless to say, the passage of this legislation would have a significant impact on an employer’s approach to drug testing and other efforts to maintain a drug-free workplace. With respect to drug testing, the bill explicitly notes that drug testing is ineffective and that drug testing technology “discriminates against medical cannabis use that has occurred days or weeks previously.”

However, providing some good news for employers, the proposed amendment expressly states that employers may proceed with corrective action against an employee who is impaired on the employer’s property or premises because of the use of cannabis.

The proposed legislation abrogates the California Supreme Court’s 2008 decision in Ross v. RagingWire Telecommunications, Inc. In Ross, the California Supreme Court held that an employer was not required to accommodate an employee’s medicinal marijuana use and found that the legalization of medicinal marijuana did not grant marijuana the same status as a legal prescription drug and noted that because marijuana is illegal under federal law, it could not be completely legalized for medical purposes. In conclusion, the Court found that because the FEHA does not require employers to accommodate illegal drug use, the employer could lawfully terminate the employee for using medicinal marijuana. AB 2069 would drastically change the law and prohibit employers from terminating medicinal marijuana users.

To address the fact that medicinal marijuana remains illegal under federal law, the proposed amendment provides that it does not prohibit an employer from refusing to hire an individual or discharging a medicinal marijuana user if the failure to discharge would cause the employer to “lose a monetary or licensing-related benefit under federal law or regulations.” Marijuana remains a prohibited controlled substance under federal law and companies contracting with the federal government must be able to ensure a drug-free workplace.

Please contact Jackson Lewis with any questions about this pending new law.