In recent years, medical marijuana has been used extensively and has gained acceptance amongst California residents. In keeping up with the trend, lawmakers recently introduced a bill that would amend California’s employment discrimination laws to impose liability on employers for alleged discrimination against medical marijuana users. Assembly Bill 2069 (AB 2069) was aimed at prohibiting employers from engaging in employment discrimination against a person on the basis of his or her status as a qualified patient or person with an identification card.
However, employers can breathe a sigh of relief for now, as AB 2069 has been shelved while lawmakers refine its language before attempting to pass it once more.
History of Marijuana Laws in California
In 1996, Californians voted to legalize medical marijuana, despite the law’s potential conflict with federal law classifying marijuana as one of the most serious narcotics. Proposition 215, or the “Compassionate Use Act of 1996” (CUA), legalized the use of medical marijuana for treatment related to cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraines, or “any other illness for which marijuana provides relief.” California Senate Bill 420 subsequently clarified the scope and application of the CUA by formally establishing the California medical marijuana program. Since the passage of the CUA and Senate Bill 420, Californians have been able to easily obtain medical marijuana prescriptions for seemingly any medically-related reason.
The accepted use of medical marijuana and changing views of marijuana use overall culminated in California’s legalization of marijuana for recreational use. In 2016, California voters once again decided to relax the state’s marijuana laws by passing Proposition 64—the Control, Regulate, and Tax Adult Use of Marijuana Act—making the recreational use of marijuana legal.
California’s marijuana use laws have placed employers in a difficult situation, as they have to grapple with enforcing their workplace drug policies in a state where marijuana use is widely accepted.
Marijuana and the Workplace
Marijuana use—whether recreational or medical—is becoming the norm, and employers are now tasked with making business decisions in light of this change. Employers with strict drug-free work environments are faced with demands from medical marijuana users to accommodate their marijuana use. The California Supreme Court has made clear, however, that an employer is not required to accommodate medical marijuana use—regardless of whether the CUA explicitly allows the individual to use marijuana for medically-related purposes—in Ross v. RagingWire Telecommunications, Inc., No. S138130 (January 24, 2008). The Ross court found that state law could not completely legalize medical marijuana because marijuana remains illegal under federal law. Moreover, because the California Fair Employment and Housing Act (FEHA) does not require employers to accommodate the use of illegal drugs, an employer is not in violation of the FEHA if it refuses to hire someone who tests positive for medical marijuana use. Indeed, an employers’ right to “maintain a drug and alcohol free workplace” has even been codified in California Health and Safety Code section 11362.45(f).
In response to the Ross decision, two California legislators drafted AB 2069, attempting to classify medical marijuana users as a protected class of persons similar to those protected on account of their “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.” The California State Assembly Committee on Labor and Employment voted to pass the bill, however, it stalled in the Committee on Appropriations. The bill is now on hold for the year, but as marijuana acceptance and usage continues to expand, California employers can expect to see more bills such as AB 2069 brought up for consideration.
Keith A. Watts is a shareholder in the Orange County office of Ogletree Deakins.
Carlos Bacio is a law student, currently participating in the summer associate program in the Orange County office of Ogletree Deakins.