​CalChamber Highlights Difficulties Marijuana Bill Creates for Employers

(March 31, 2011) Legislation establishing a protected classification for employees who use medical marijuana will undermine employers’ ability to provide a safe and drug-free workplace, the California Chamber of Commerce told a Senate committee this week.

CalChamber-opposed SB 129 (Leno; D-San Francisco) is similar to Proposition 19, the CalChamber-opposed initiative that California voters rejected in November 2010. 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.

Because the Senate Judiciary Committee lacked a quorum on March 29, it delayed a vote on SB 129 until next week.    

Marijuana in the Workplace

CalChamber Policy Advocate Jennifer Barrera testifies against SB 129. Photo by Megan Wood
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 the employee’s shift. An employer could smell the odor of marijuana and observe the employee’s red eyes (which under current law would likely be enough to send the employee home or conduct a drug test). However, the employer would have to wait to do anything until the employee showed clear signs that the marijuana was affecting or “impairing” the employee’s performance.

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 until there was objective evidence of actual impairment, such as an industrial accident or injury. This would increase the likelihood of industrial accidents and injuries, which would directly impact employers’ workers’ compensation premiums and increase employers’ litigation expenses as a result of the likelihood of negligent hiring claims to follow. 

‘Safety-Sensitive’

Notably, SB 129 does provide an exemption to exclude medical marijuana users from “safety-sensitive” positions. The narrow and subjective manner in which this term is defined, however, renders it useless to employers. 

Specifically, a position is considered “safety-sensitive” and exempt from the protections of SB 129, only if:

  1. it requires a “level of trust and responsibility” higher than normal;
  2. a “clear” risk of health and safety to others is created if there are errors in judgment, inattentiveness, diminished coordination, or composure; and
  3. the employee works independently or performs work where mistakes cannot likely be prevented by a supervisor or other employee. 

The ambiguous terms used in this definition would inevitably lead to differing opinions among employees and employers as to which positions have a “higher level of trust” or present a “clear” risk of health and safety to others so as to qualify as “safety-sensitive.” 

Given the threat of litigation that SB 129 creates, along with a statutory right to attorney’s fees, the financial risk to employers of mistakenly misclassifying a position as “safety-sensitive” is simply too high to even consider this as a realistic option. 

Accordingly, through SB 129, employees under the medical use of marijuana could very well end up working in positions that pose a significant risk to the health and safety of other employees as well as members of the public.

Putting Employees’ Safety at Risk

Moreover, SB 129 creates a significant disadvantage for California employers with 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 conflict with this federal mandate, and forcing a California employer to make the impossible decision of:

  1. complying with SB 129 and allowing employees who are qualified patients to work while under the influence of marijuana and possess marijuana in the workplace, thereby risking the loss of all federal contracts or grants; or
  2. complying with federal law and enforcing a drug-free workplace, thereby risking civil litigation for any affected employees who are qualified patients.

California has a $25 billion budget deficit and is already lagging the rest of the country in recovering from the recession. It simply cannot afford to lose federal money or encourage businesses to relocate to other states where they do not have to worry about complying with a state law that jeopardizes their receipt of federal contracts or grants.

Supreme Court Ruling

Finally, this bill 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. 

Additionally, 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. 

The California Supreme Court confirmed that regardless of the criminal exemption for such individuals, employers are still allowed to manage their own workplaces, including deciding whether to hire medical marijuana users.

The decisions of the voters and the state Supreme Court should be respected.

Staff Contact: Jennifer Barrera


 
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