(May 11, 2011) Voters rejected the idea of creating workplace protections for medical marijuana users, but the concept has been revived in a proposal awaiting action by the Legislature.
California Chamber of Commerce-opposed SB 129 (Leno; D-San Francisco) undermines employers’ ability to provide a safe and drug-free workplace by establishing a protected classification for employees who utilize medical marijuana. The bill will appear as a "job killer" on the CalChamber's soon-to-be-released list.
Specifically, SB 129 seeks to prohibit employers from terminating, disciplining or refusing to hire persons who, as qualified patients, can legally possess and use marijuana for medical purposes.
At a recent gathering of experts from throughout the nation focusing on the impact of marijuana from a variety of perspectives, Erika Frank, CalChamber vice president, legal affairs, and general counsel, compared SB 129 with Proposition 19, the marijuana initiative California voters rejected in November 2010.
Similarities to Proposition 19
Like Proposition 19, SB 129 creates a protected class of employees that doesn’t exist today (medical marijuana users).
SB 129 precludes compliance with state and federal drug-free workplace laws, jeopardizes workplace safety and exposes employers to litigation.
Like Proposition 19, SB 129 treats marijuana users differently than alcohol users, establishing a new undefined standard for when an employer could take action to ensure a safe workplace.
Slight Differences
Unlike Proposition 19, SB 129 forbids the use of marijuana on the employer’s premises. The bill does not, however, preclude marijuana use before or during work outside of the employer’s premises.
Moreover, SB 129 does not preclude possession of marijuana.
Although Proposition 19 set a standard of “actual impairment” before an employer could, for example, remove an employee from duty, SB 129 calls for an “impairment” standard.
In both cases, however, the standard is higher than the “reasonable suspicion” standard that exists today and is very subjective.
Promotes Litigation
SB 129 makes it “unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment or otherwise penalize a person” for being a medical marijuana patient or testing positive for marijuana use that doesn’t occur on the employer’s premises.
The bill also creates a private right of action, allowing an employee who believes he/she was discriminated against for use of medical marijuana to sue the employer even if the reason the employee was “penalized” was unrelated to the medical use of marijuana.
Workplace Impacts
Although SB 129 precludes an employee from “using” marijuana at the workplace, it does not preclude an employee from either possessing marijuana in the workplace, or “using” marijuana minutes before coming onto the worksite and beginning work.
Under current law, signs of marijuana use in an employee (such as marijuana odor or red eyes) would likely be enough cause to send the employee home or conduct a drug test. If SB 129 becomes law, the employer would have to wait to do anything until the employee’s performance showed signs of “impairment.”
The subjective nature of the term “impairment,” coupled with the private right of action provided under SB 129 for any alleged violation, would make employers hesitant to take any action.
This would increase the likelihood of industrial accidents and injuries, which would have a direct impact on employers’ workers’ compensation premiums, plus increase employers’ litigation expenses due to the likelihood of negligent hiring claims to follow.
SB 129 also creates a significant disadvantage for California employers with federal contracts or grants. Federal law requires federal contractors and grantees to provide a drug-free workplace, which includes implementing a policy that prohibits the use or possession of marijuana.
In 2008, the California Supreme Court confirmed that regardless of the criminal exemptions made for medical marijuana users, employers are still allowed to manage their own workplaces, including deciding whether to hire medical marijuana users.
Action Needed
SB 129 awaits a vote by the full Senate. The CalChamber is urging employers to ask their legislators to oppose SB 129.
An easy-to-edit sample letter is available at www.calchambervotes.com.
Staff Contacts: Erika Frank, Jennifer Barrera