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Mark I. Schickman, Editor and Cathleen Yonahara, Assistant Editor
Freeland Cooper & Foreman LLP
Vol. 18, No. 2
April 25, 2008
DRUG USE
Medical marijuana patients score legislative victory
Cathleen S. Yonahara
On April 8, the California Assembly Judiciary Committee approved Assembly Bill (AB) 2279, protecting medical marijuana patients from employment discrimination. Under the proposed bill, you may not terminate an employee for a positive drug test for
marijuana if he is a qualified patient and the medical use of marijuana doesn't occur on your property or premises or during work hours.
Why potheads are seeking employment protection
Proposition 215 of 1996, the Compassionate Use Act, provides that a patient or a patient's primary caregiver who possesses or cultivates marijuana for the patient's personal medical purposes upon the recommendation of a physician isn't subject to
conviction for offenses relating to possession and cultivation of marijuana. The Act is silent regarding job protection. That silence eventually led the California Supreme Court to conclude that an employer was legally permitted to fire an employee
based on his use of medical marijuana.
In September 2001, Gary Ross, a disabled veteran, was discharged for failing an employer-mandated drug test even though he already had informed his employer that he was using medical marijuana outside the workplace under his doctor's recommendation.
Ross sued the employer.
In January 2008, the court issued a 5-2 decision holding that the Compassionate Use Act, which gives authorized medical marijuana users defenses to certain state criminal charges related to marijuana, doesn't protect employees who test positive for
marijuana use. The court noted, "Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees. Under California law, an employer may
require preemployment drug tests and take illegal drug use into consideration in making employment decisions." Ross v. RagingWire Telecommunications, California Supreme Court, 1/12/08.
Bill protects medical marijuana users from discrimination
Assemblyman Mark Leno authored AB 2279 to effectively overturn the California Supreme Court's decision. Under the bill, you may not discriminate against an employee based on his status as a qualified medical marijuana patient or a designated primary
caregiver. You are further prohibited from discriminating against an employee based on testing positive for marijuana if (1) the person is a qualified medical marijuana patient and (2) the "medical use of marijuana . . . does not occur on the
property or premises of the place of employment or during the hours of employment."
AB 2279 doesn't require any accommodation of any medical use of marijuana on your property or during work hours. Also, the protection for positive drug tests for marijuana doesn't apply to an employee in a "safety-sensitive position."
AB 2279 leaves open certain questions. What if the "medical use of marijuana" occurs before the employee's "hours of employment" and off-premises as expressly permitted under AB 2279 but the employee is still under the influence of marijuana once he
starts working? Under the bill, an employee can presumably smoke marijuana at home before leaving for work and report to work still stoned. According to the supporters, AB 2279 doesn't prohibit you from terminating an employee who is intoxicated
during work hours, but the bill doesn't explicitly say so.
Employees in safety-sensitive positions are excluded from the bill's prohibition against discrimination based on a positive drug test for marijuana. What is a safety-sensitive position? AB 2279 defines it as a law enforcement position or "a position
in which medical cannabis-affected performance could clearly endanger the health and safety of others." To fall under the exception for a safety-sensitive position, the position must meet all of the following criteria:
(A) Its duties involve a greater than normal level of trust, responsibility for, or impact on the health and safety of others.
(B) Errors in judgment, inattentiveness, or diminished coordination, dexterity, or composure while performing its duties could clearly result in mistakes that would endanger the health and safety of others.
(C) An employee in a position of this nature works independently, or performs tasks of a nature that it cannot safely be assumed that mistakes like those described in subparagraph (B) could be prevented by a supervisor or another employee.
Other than law-enforcement positions, exactly which positions meet that definition is unclear and would likely be the subject of litigation if the bill is passed.
What's next?
The California Assembly Judiciary Committee approved AB 2279 on a party-line vote with six Democrats in favor, three Republicans in opposition, and one Democrat abstaining. Approval from the Judicial Committee is an important legislative victory for
medical marijuana patients. The bill is sponsored by Americans for Safe Access and is endorsed by several organizations, including the AFL-CIO, the American Federation of State, County, and Municipal Employees, and several HIV/AIDS advocacy
organizations.
Before this bill becomes law, it must be approved by the Assembly Labor and Employment Committee, the Assembly, the Senate, and the governor. But even if it isn't passed by the legislature, like the Compassionate Use Act, it may come before the
voters as a ballot initiative.
Bottom line
Under current California law, you may fire employees who test positive for marijuana even if they have a note from a doctor recommending its use for medical reasons. Of course, the drug test itself must comply with California law. To reduce claims of
invasion of privacy, you should give advance written notice of any drug- testing requirements and administer the drug test in the most minimally intrusive manner possible. You should limit any random drug testing to positions for which it's required
by law and positions that are clearly safety-sensitive. You should consult with counsel before implementing a drug-testing policy.
If AB 2279 passes, you will need to review and revise your drug-testing policies to comply with the bill. For example, any drug-testing policy would have to exclude positive tests for marijuana as a basis for disciplinary action.
The author can be reached at Freeland Cooper & Foreman LLP in San Francisco, yonahara@freelandlaw.com.
Copyright 2008 M. Lee Smith Publishers LLC
The contents of CALIFORNIA EMPLOYMENT LAW LETTER are intended for general information and should not be construed as legal advice or opinion. Readers in need of legal advice should retain the services of competent counsel. The State Bar of California
does not designate attorneys as board certified in labor law.
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