Is It Legal to Discriminate Against an Employee Who Uses Medical Marijuana in California?

California law traditionally protects employees from workplace discrimination based on a medical condition. But the law also permits employers to conduct drug testing of employees, under certain circumstances, to screen for the presence of illegal drugs. This can present a problem for patients who require medical marijuana to treat a legitimate medical condition.

Although California has permitted the use of marijuana with a doctor’s prescription since 1996–and the state recently decriminalized the possession of the drug for recreational purposes–it remains an illegal controlled substance under federal law. Furthermore, the California Supreme Court held in a 2008 decision, Ross v. RagingWire Telecommunications, Inc., that existing state laws do not protect workers who take medical marijuana from adverse employment actions. In other words, if your employer requires a drug test and you test positive for marijuana, you may be fired even if a doctor certifies you have a legitimate medical need for the drug.

Assemblymen Propose Expanding FEHA to Protect Pot Users

But this state of affairs could change soon, thanks to proposals by two California legislators. In February, Assembly Members Rob Bonta and Bill Quirk introduced legislation that would expand California’s Fair Employment and Housing Act (FEHA) to include discrimination against medical marijuana users. The bill remains in its early stages–it has been referred to a state assembly committee for further review–but if it ultimately becomes law, it would significantly alter the balance of power between employers and employees with respect to marijuana.

As introduced by Bonta and Quirk, Assembly Bill 2069 would make it an “unlawful employment practice” to take adverse employment action against an employee due to their “status as, or positive drug test for cannabis,” provided they are a “qualified patient or person with an identification card” under California’s existing medical marijuana program. The bill would not extend to recreational users of marijuana, even those who do so under California law.

AB 2069 also contains two critical exceptions. The first is for any employer who would “lose a monetary or licensing-related benefit under federal law or regulations.” In other words, an employer is not obligated to hurt its own business by retaining an employee in violation of a federal contract that requires a “drug-free” workplace. Remember, the federal government does not recognize the medical use of marijuana, and the Trump administration has indicated it will “renew tough federal enforcement of marijuana laws,” according to a recent New York Times report.

The second exception is for cases where an employee is “impaired” on the employer’s property during normal business hours “because of the use of cannabis.” Just as an employer can fire an employee for coming to work drunk, even though alcohol is legal, it could still dismiss a worker who comes to work “stoned,” regardless of whether they have a qualifying medical condition.

What Does the Future Hold for California Workers Who Require Medical Marijuana?

According to Cal NORML, a marijuana advocacy group, approximately 19 percent of people it surveyed “have been denied employment due to their use of medical cannabis.” This is despite the fact that “[n]o scientific evidence exists that medical cannabis users are substandard employees,” according to the sponsors of AB 2069. Unfortunately, absent a change in the law such discrimination remains legal in California.

If you have any questions or concerns about how your use of marijuana or other cannabis products to treat your medical condition may affect your rights at work, contact a qualified California employment lawyer right away.

Sources:

leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB2069

nytimes.com/2018/01/05/us/politics/trump-marijuana-policy-bipartisan-fire.html

canorml.org/bill_to_protect_medical_marijuana_patients_from_employment_discrimination_introduced_in_California