As you may know, California’s legalization of recreational cannabis use does not prevent employers from enforcing drug-free workplace policies. Employers may decline to hire job applicants or fire employees who test positive for cannabis.
Since the California Supreme Court has ruled that this is true even for employees with legal prescriptions for medical cannabis, it is likely the high court would apply the same rule for the legal use of recreational cannabis. However, recently proposed California legislation seeks to change this.
On February 7, A.B. 2069, a medicinal cannabis anti-discrimination law was introduced in the California State Assembly by Assemblyman Rob Bonta, D-Oakland, and Assemblyman Bill Quirk, D-Hayward. If passed, this bill would designate the legal use of medical cannabis as a protected class under state law prohibiting employment discrimination.
Specifically, the bill would prevent employment discrimination on the basis of “status as, or positive drug test for cannabis by, a qualified patient or person with an identification card.” A qualified patient under state law is someone who has doctor approval to grow or possess cannabis for the patient’s own medical treatment. Identification cards would be issued by the State Department of Public Health to qualified patients who request them.
The bill acknowledges that many employers prohibit workers from using medical cannabis but allow them to use other, more dangerous and addictive drugs such as opiates when prescribed by their physicians. Several other states including Nevada and New York have laws protecting medical cannabis patients against employment discrimination.
An employer still would be able to discharge or discipline a worker who is impaired by cannabis use when on the employer’s premises or on duty, even if that worker is a qualified patient for medicinal use.
In addition, an employer could discriminate in this situation if it would otherwise lose a “monetary or licensing-related benefit” under federal law.
Talk to an employment attorney
California employers should get legal guidance around the “do’s and don’ts” concerning workplace drug bans and drug-testing policies and procedures, and should have well-written employee handbooks or policies on these subjects.