(February 11, 2011) The California Chamber of Commerce has announced that it will oppose SB 129 (Leno; D-San Francisco), which seeks to establish a protected classification for employees who use medical marijuana and thereby undermines employers’ ability to provide safe and drug-free workplaces.

Similar to Proposition 19, which the California voters rejected in November 2010, SB 129 seeks to prohibit employers from terminating, disciplining or refusing to hire employees who are qualified patients that can legally possess and use marijuana for medical purposes.

Although SB 129 precludes an employee from “using” marijuana at the workplace, it does not preclude an employee from possessing marijuana in the workplace, or “using” marijuana minutes before coming onto the worksite and beginning his/her shift.

According to SB 129, an employer could smell the odor of marijuana and observe the employee’s red eyes (which under current law would likely be enough for the employer to send the employee home or conduct a drug-test), but would have to wait to do anything until the employee showed clear signs that the marijuana was affecting or “impairing” his/her performance.

Moreover, SB 129 creates a significant disadvantage for California employers who have federal contracts or grants. The federal Drug-Free Workplace Act requires federal contractors and grantees to provide a drug free workplace, which includes implementing a policy that prohibits the use or possession of marijuana.

The restrictions under SB 129 directly contrast with this federal mandate, thereby forcing a California employer to choose between complying with SB 129 or complying with federal law. California employers are put into a lose-lose situation: either risk litigation or risk the loss of all federal contracts or grants.

Finally, SB 129 seeks to usurp the voice of the voters as well as the Supreme Court. In November 2010, the voters overwhelmingly rejected Proposition 19, which would have provided marijuana users with similar protections in the workplace. In January 2008, the California Supreme Court held that the Compassionate Use Act of 1996, which allowed Californians to use marijuana for medical purposes, did not create safeguards for such individuals in the workplace. CalChamber believes the decision of the voters and the Supreme Court should be respected.

Action Needed

The CalChamber is urging employers to contact their state senators and urge them to oppose SB 129.

Staff Contact: Jennifer Barrera